Episode 4: Ellison, Hunt, and Moore

[00:00:05.870] [SPEAKER_01] The defendant was convicted of kidnapping and murder after police found his wife dead in their master bedroom, bound hand and foot and suffocated with plastic bags. A majority of the Court of Appeals found insufficient evidence of kidnapping, though it sustained the murder conviction. We'll be discussing that case, State v. Moore, today, along with two other cases. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of District Attorneys. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina.
[00:00:47.415] [SPEAKER_00] Joe, let's begin with that State v. Ellison case. This is a case where a search warrant for the defendant's house included a photograph of the wrong house. So what's going on with that case?
[00:00:58.378] [SPEAKER_01] Yeah, so December 2022, defendant broke into a building in Watauga County and stole two chainsaws. There was a trail camera somewhere on the property captured footage of defendant and another man actually wheeling the chainsaws through the woods in the wagon that was also stolen. Watauga County Sheriff's deputies recognized the defendant from prior dealings with him. The next day, the lead investigator applied for a warrant to search the defendant's home, which was located at 303 Tanner Road in Boone. That address incidentally was taken from a DMV document that reported the defendant's address. The warrant included aerial photographs and ground level photographs of a white single wide mobile home. When the law enforcement officer went to execute the warrant, he realized, however, that the photographs depicted 310 Tanner Road, not 303 Tanner Road. The law enforcement officer returned to the magistrate's office and they together amended the warrant. Cross out the reference to the photographs and then initialing the amendations, they excised the photographs that depicted the wrong property. And there was also, I guess, a reference in the warrant to a pile of logs that was again taken from the photograph but didn't refer to the right address. That officer then hands the warrant to a different officer that goes out and executes the warrant on the defendant's residence. While executing the warrant at 303 Tanner Drive, the officers found and seized four different chainsaws, two of them of the same brand as the ones that were stolen, and the defendant in subsequent statements to the police actually admitted to stealing the chainsaws. The defendant was indicted for breaking and entering and larceny. He filed a motion to suppress. The trial court denied the motion to suppress and the defendant pled guilty to breaking and entering larceny habitual felon status and then argues on appeal that the trial court erred in denying his motion to suppress. And the whole argument here really turns on whether those photographs that were initially attached to the warrant that depicted the wrong address somehow invalidated the warrant here. The Court of Appeals divided the arguments into what it called the substantive issues and the procedural issues. And I'll just go through those kind of separately. With regard to the substantive issues, defendant argued that the search warrant failed to identify the property with reasonable certainty, that the affidavit was insufficient to establish probable cause, and that the description of the property to be seized was insufficient. Apparently it was two steel chainsaws, but they didn't have the serial number, I guess they didn't have the color of the chainsaw, so there's a question of whether the items to be seized were sufficiently described. The Court of Appeals recited the rule that a search warrant must contain a designation sufficient to establish the premises to be searched, but a warrant is not necessarily invalid merely because the address described varies from the address that is ultimately searched by the police. Here, the search warrant's description was sufficient to establish the premises to be searched. And while part of that description was inaccurate, the warrant did actually correctly list the address, right? So it had the address of the defendant's property. It just included initially these photographs of different property. The next issue in the Court of Appeals recited the rule that the affidavit must establish a nexus between the objects sought and the place to be searched. Here, the Court of Appeals said that the affidavit included the law enforcement officer's assertion that the defendant lived nearby and could be seen on the video carrying the chainsaws away from the scene. The defendant's address is, in fact, 303 Tanner Road in Boone. So the Court of Appeals held that the information in the affidavit was sufficient to support the conclusion that the chainsaws might be found at the defendant's residence. And then with regard to the description of the item to be seized, the rule generally is that a warrant must contain a description of the items constituting the object of the search. Stolen property in particular generally requires a definite description, but that may be relaxed given the circumstances as when the owner of the property doesn't know, for example, what the serial number might be. Here, the Court of Appeals found that the warrant described the chainsaws and the wagon based on the only information that the victim was able to provide. And while that description could have been more specific, they were sufficient in that case to indicate the particular objects to be sought. And then there was a whole host of issues arising out of the fact that the law enforcement officer actually went back to the magistrate and tried to do this amendation of the
[00:05:10.093] [SPEAKER_00] warrant. So, Joe, I know you're about to talk about these sort of interesting procedural questions about can we even do this kind of thing of amending a search warrant that's already been issued by a magistrate. But before we dive into that, do you think that was even necessary in this case? Or could the officers have just executed the search warrant as it was, even with that incorrect photograph included? And I know you and I have talked about this before, that A case that comes to mind for me, the State v. Hunter from 2010, which was sort of an interesting opposite example of this. In State v. Hunter, there was a search warrant that had the wrong house number, but it did have a very good and detailed physical description of the property so that the executing officers could know that they had gone to the right place. So even if we didn't get into this next part you're about to cover with making the amendments, would it have survived even with this sort of incorrect photograph if
[00:06:04.964] [SPEAKER_01] we have the correct address? I think there's a good chance that it would have. I mean, one salient fact that the Court of Appeals picked up on here is that the warrant affidavit, the search warrant application included the particular address that they ended up searching, the defendant's actual address. The fact that these photographs were included and that the photographs were inaccurate and maybe some of the details derived from those photographs were wrong. Yeah, whether it was necessary for the officer to go back to the magistrate, I'm not sure that it was. The other thing is that the fact that the officer did go back to the magistrate and tried to sort of fix this problem to amend the warrant correctly to reflect the address shouldn't be held against the officer, right? The defendant wants to make a whole lot of arguments based on whether there's no statutory authority to amend a warrant, but the defendant doesn't say what the officer should have done. Could he have just left it alone? Perhaps. But I don't see the Court of Appeals faulting the officer for actually going back and
[00:06:59.935] [SPEAKER_00] trying to make this right. And, you know, that's a good point, too, because the touchstone for all this is always supposed to be that some other officer who has absolutely no knowledge whatsoever about the case should be able to pick up this warrant, go to the right place, search for the right things, and then bring those back. And here, in this case, when the warrant is, in fact, handed off to another person, the That officer gets out there and says, look, I got an address for one place. I got a picture for another place. I can't tell where I'm going or I'm not 100 percent sure which one of these is the right one, which is why he comes back. So perhaps a counter argument that, no, it may not have survived compared to what we saw in Hunter. Can't be sure. But in any case, to avoid that risk. They try to come back and fix it. Kudos to the officer here,
[00:07:41.076] [SPEAKER_01] right? Because they went out and found this discrepancy. And instead of just proceeding, they turn around and go back to the magistrate and they say, what do we do? And what they ended up doing was they strike out those erroneous references. They remove the photographs and send another officer out with the warrant. to conduct the proper search. But then when it arrives at the stage of a motion to suppress and the defendant's making these arguments based on that, he's given a whole lot of ammunition to make this argument. Look, there's nothing in the statute that allows you to go back and strike stuff out and start over. This was, in fact, reinitiating the warrant process and so it had to comply with the statutory requirement that the warrant be signed. At the time and the date of the issuance, this warrant application apparently had the prior time and date, but not the one after it was amended, although it was within a very short timeframe. The defendant made the argument that these amendments were based on unsworn information because the officer comes back and says, wait a minute, we got the wrong photograph. And then finally, that the magistrate failed to record or summarize this additional information received from the officer that played into this determination of whether to issue the warrant. The Court of Appeals rejected all of those arguments. It started with the premise that courts should not invalidate warrants by interpreting affidavits in a hyper-technical rather than in a common sense manner. Going back, John, to your point of like the magistrate is allowed to make these common sense inferences, but in addition to that, we're not going to like nitpick through these things when the officer has done what an officer is supposed to do and satisfy the warrant requirement before searching somebody's residence. With regard to the redaction argument, the Court of Appeals acknowledged that it's true that Chapter 15A of the general statutes does not include a procedure to amend warrants, but it noted, based on its earlier conclusions about this case, that the underlying affidavit was sufficient to support probable cause and to support the search warrant. In other words, it satisfied the constitutional requirements for a warrant, whether it may be meandered from these statutory requirements is a different issue. The Court of Appeals found inclusion of the wrong photographs more analogous to an officer relying on hearsay, which an officer is permitted to do, than to an intentional inclusion of false information, as in a case called Delaware v. Franks, where the reviewing court has to do a more sort of searching review of the warrant to determine whether if that information is excised, it would have supported probable cause. The Court of Appeals found that the trial court did not err by concluding that the redaction was within the magistrate's discretion. There's a rule that the search warrant must contain the name and signature of the issuing official with the time and date of issuance. The Court of Appeals concluded that the essential purpose of that statute was to provide a record of the time so as to comply with the 48-hour time limit that appears in another statute between issuance and execution of the warrant. And here that purpose was satisfied because the warrant was executed within the 48-hour window. So the fact that there hadn't been a new signature at the time and date after the amendation process was not fatal to this search warrant application. The officer and the magistrate initialed the redactions after having signed the warrant 20 minutes earlier. I mean, it's a very short turnaround. And the Court of Appeals added the defendant failed to show that he was prejudiced by this procedure that the magistrate and the officer used in amending the warrant. There is a statutory requirement that information other than that contained in the affidavit may not be considered by the issuing official in determining probable cause unless the information is recorded and summarized. But with regard to that information that the officer brought back, that there was a discrepancy between the photograph and the actual address, the trial court did not err in finding that the subsequent amendment didn't add any additional information. It actually took it out. This was the excised information that didn't accurately reflect the location to be searched. So ultimately, the trial court did not err by concluding that the redactions did not invalidate the warrant.
[00:11:22.860] [SPEAKER_00] And that's not prescribed by statute, as you say, doing these amendments. And what I'm saying is a different context. But going back to something like a Franks v. Delaware hearing, for example, in a case where there's maybe an allegation that there's something untruthful offered in the officer, I mean, that is essentially what we do, right? We say, okay, so take all that out and look at what's left. Do we have probable cause? Is this a valid search warrant? I mean, in some sense, this kind of feels like the same thing to me. But I guess sort of the bigger picture for me is, We've had other issues where there is some minor statutory violation with executing the search warrant. We forgot to return the inventory of seized items timely to the clerk's office, whatever it may be. But it does seem like the case law says, in terms of a constitutional analysis, a Fourth Amendment analysis, as long as we've got those core elements, that it was presented to a neutral and detached magistrate, that it's based on probable cause, that it's specifically identifying the place to be searched, the thing to be seized, That generally, it seems, should be good enough that this evidence is going to be admissible at trial.
[00:12:23.457] [SPEAKER_01] Yeah, right, right. And with regard to the Franks v. Delaware issue, yeah, it's similar in the sense that they excised this information. They didn't add information to it. But what the Court of Appeals found compelling was this was not a scenario, as in Franks, where there's an allegation that the officer deliberately included a known false. Absolutely not. Nothing like that. This was clearly sort of a mistaken case of including these photographs that the officer legitimately thought accurately reflected the residents and turned out not to be the case.
[00:12:49.783] [SPEAKER_00] So on that other issue of like, for example, executing it within 48 hours, you know, here, as you say, this is a very short window of time, 20 minutes or so, and we've got the corrected one. I wasn't entirely clear on how they were resolving that though. It seems like they're kind of saying, we don't really even have to get into it because this is all happening within 48 hours regardless. If it were a different situation, if we discover the error, couldn't fix it until the next day, and then it's 48 hours from that second day that we're then finally executing, we are outside the 48-hour window, would we then pin it to the amendments or pin it to the original
[00:13:22.736] [SPEAKER_01] date? In that scenario, I think it would be safer for the magistrate to issue a new search warrant. That's really the argument that the defendant was trying to make here, is that this reinitiated the procedure, so you've got to go through all those steps again. But the Court of Appeals found there's no problem that it didn't have another signature, as it were, because you're still within that 48-hour window. I think where you have a scenario where it's possible that the search warrant could be executed outside of that statutory window, it would be wiser to just get a new search warrant.
[00:13:49.133] [SPEAKER_00] And for our prosecutors or law enforcement officers, maybe that's our recommendation, regardless, is if you've got this error, you could always just get a new search warrant that avoids all these problems before we walk out.
[00:13:58.846] [SPEAKER_01] Now, depending on the time frame, you might have a staleness issue, right? If it's three weeks later, if it's three months later, you want to make sure that that information is still current. But yeah, that certainly avoids this problem. The Court of Appeals agreed with defendant. Chapter 15A does not include a statutory procedure to amend a warrant. So even though... even though the magistrate and the officer kind of got by here, it certainly would be safer, given the time differential, maybe just to start over.
[00:14:23.581] [SPEAKER_00] But, you know, for our prosecutors who may often be finding themselves perhaps not involved in making the decision about, are we going to get a new one? Are we going to amend this one? Oftentimes, this is just what's already happened, and I'm hearing about it weeks or months later. But if that's sort of where they find themselves, I think this is a good case to look back to to say, this warrant is still valid, this is still proper, that the evidence recovered from that search is still coming in.
[00:14:45.172] [UNKNOWN] That's right.
[00:14:45.547] [SPEAKER_00] I think the second one we wanted to talk about from this set of cases was State v. Hunt. And this is a case that we got out of Robeson County, and it deals with, unfortunately, what sounds like was a long-standing difficult relationship between a couple of neighbors. And it says that the defendant purchased his home back in 2018, and in their words, there had been a great deal of animosity between the defendant and a neighbor, Todd, in this intervening period. from when they moved into 2018 to when this incident ends up happening in January of 2019. And the defendant would say that he'd been the subject of harassment and trespassing onto his property by this neighbor, Todd, including driving at night with four-wheelers, throwing beer cans, bottles, and so forth onto their property. But Here, what happens on January 25th of 2019 is that the defendant is driving back to his home on his way home from work, and he's not able, it sounds like, to describe exactly what happens. He says it just happened so fast, instantaneous, but there is an impact. And the collision that occurs is that the defendant's vehicle hits the victim, Todd, on his four-wheeler. And Todd is unfortunately very seriously injured. He suffers a broken leg, broken ankle, his jaw, eye socket, all injured. The victim in the case, Todd, has no recollection of the incident. But of course, law enforcement is called and they come out, evaluate the scene, take photographs, collect their evidence. And the defendant ultimately is charged for this assault with a deadly weapon inflicting serious injury without intent to kill, an injury to personal property. But at the trial of this matter, the officer who came out testifies and gives his opinion on this issue about whether or not it was an intentional collision caused by the defendant with the victim on the four-wheeler. The court says that after admitting photographs taken at the scene, the state asked the officer, which again, as the court points out, responded to the scene of this accident. But they ask him whether he'd formed an opinion, whether this was an accident or an intentional act. to which the officer replied, in my opinion, it was an intentional act. So as I said, the defendant is convicted of this serious assault and injury to personal property and is also ordered to pay, I believe, some $600,000 in restitution. So the issue that we're looking at here on appeal is this testimony from the officer basically giving his opinion about whether it was an intentionally caused collision or whether it was just some kind of an accident. So the court talks about how an officer is permitted to testify about the physical facts that were observed at the scene, including conditions of the vehicle or where they're located, all of that. But as for an opinion about why it was caused, if it's just gonna be an officer's personal lay opinion, the court explains that the jury's opinion about that is just as valid. If they're just looking at the position of the vehicles and tire marks and whatever else it may be, they are just as qualified to render that lay opinion. giving that kind of testimony as a witness, that's only going to be allowed if the testifying person has been qualified as an expert in accident reconstruction. Then they could talk about why they think it was intentional. And here's what I'm looking at, and that's what I think it means. But we're not going to allow that for just a general lay opinion testimony from another officer. And here, the court points out that the state did not proffer this law enforcement officer who responded to the scene as an expert in accident reconstruction. So, based on that, the officer really has no special ability to know or unique insights that he could offer different from what the jury could do. So, There is no showing about why he has, as the court says, a superior ability to form conclusions based on the evidence gathered from the scene of the accident than does the jury. So then the question is, because this was not objected to, the court's reviewing the issue for plain error. And here, the Court of Appeals says, yes, the defendant has satisfied that high bar. They say the dispute in this case was all about whether the defendant had intended to to hit Mr. Todd or not. And so that's a critical issue that has to be decided. Finally, there is an issue raised as well about the habitual felon. It's something that was not really ever presented or pled to by the defendant, and yet the defendant was sentenced for it. But they say that's essentially moot because of how they're deciding the... error related to the lay opinion that was offered. So the case is vacated and it's remanded for trial. Again, I don't ever want to over-focus on the dissent, but there's an interesting point being made there. Judge Stating files a dissent that is actually longer than the majority opinion in this case. And Judge Stating agrees that there was error, but the question that is then looked at in the dissent is, was that error actually prejudicial? In other words, okay, so it was a mistake to let a non-expert witness give lay opinion that's essentially accident reconstruction testimony alleging that this thing was intentional. But as the dissent points out, there is other evidence of guilt. You know, we haven't talked a whole lot about the accident, about the facts of the accident yet, but the dissent gets into that and says even if admission of the officer's testimony was an error, the record contains abundant other evidence to support the jury's verdict. which does not raise a reasonable possibility that a different result would have been reached. And the dissent sort of reviews some of what that was. For example, I already said Mr. Todd does not remember the details of the collision, but there is an eyewitness that testifies for them about the collision, saying that, yes, it was this intentional striking of him. That person's able to give testimony about exactly what happened. And then there was just this other evidence that was offered at trial. For example, an absence of any brake marks on the road before the collision, which if a person were trying to avoid striking someone on a four-wheeler, you might think that there would be. And this
[00:20:34.894] [SPEAKER_01] history of sort of bad
[00:20:36.479] [SPEAKER_00] conflicts between them in the past... Exactly. This long-standing history of feuding, essentially, between these two parties. So again, they talk about the brake marks, the tire marks that are leading right towards the four-wheeler that's found in a ditch. So there was other evidence that would back up the jury reaching the same conclusion of, we do think this was an intentional striking of the person rather than just being sort of an accident. So the dissent would have said, considering the lack of prejudice, I would hold the defendant has not established that he received ineffective assistance of counsel. So For the prosecutors, I would just say a better way to go, perhaps, would be to highlight those facts for the jury. We want to draw out everything this officer can tell us about the fact that there are no skid marks. The tire tracks go right up into the ditch, not out on the road. We want to draw all of that. When you get to that final question, you know, we all learn this in law school, right? We don't ask the one question too many. When you get to that final question of wanting to ask the officer, so come on, officer. I mean, he just did this on purpose, right? That's what we're going to let the jury do their job and draw that conclusion. Unless we've got something like an accident reconstruction expert who could go into even more detail about explaining why that's the right conclusion for us.
[00:21:45.565] [SPEAKER_01] Jonathan, do you think that's particular to a mens rea element? I mean, particularly when we're talking about the intentionality of conduct, it might be a good idea to warn prosecutors, don't get your officer to kind of opine what's in the defendant's head unless they've got some expertise that allows them to do that.
[00:22:00.836] [SPEAKER_00] I do. Lay opinion can always be a little bit of a minefield. Yes, people can give their lay opinions about, well, he seemed mad to me. Well, why did he seem mad to you? His voice was raised and he was shaking his hand. I mean, they can absolutely give shorthand statements of facts or those kinds of lay opinions. But when we're getting into something like this, we've Historically, we've had some cases on lay opinion that allowed us to go even maybe a little bit further with a witness who's got some special expertise or history that allows them to have an insight. But, you know, we've also had cases smacking that back saying, well, that's what you're talking about is kind of getting into expert witness testimony. So, you know, I'm not saying don't ask your typical witness to give an opinion about something that's an appropriate subject for an opinion. But yes, I would agree with you when we're getting into something that's specific to intent or these, you know, fine details of causation or injuries or whatever it may be. I think we want to just bear in mind what the witness can say and what the witness can't. Right. And then Joe, I think we've got one more that we wanted to talk about. Last
[00:23:01.405] [SPEAKER_01] case on for today is State V. Moore. This was that horrific murder case that I led with in the introduction for today's episode. Defendant and the victim were married. They lived together in a rented home. The victim's family contacted law enforcement at some point when they hadn't heard from her for over a week. So in August of 2018, police entered the home to conduct a wellness check. They found the victim dead. Her body was tied to the bed with two trash bags over her head. Her head was wrapped in duct tape. Her hands and feet were tied with zip ties, with electrical cords, with handcuffs. an astounding number of restraints here, tying the victim, confining the victim, and tying her to the bed. During the search, officers found a Walmart receipt for duct tape purchased earlier in August. The defendant's DNA was found on the tape bindings on the wrists and ankles of the victim and on the cord bindings. The defendant had not paid rent for the month of August, and the landlord had eventually begun eviction proceedings. This was subsequently discovered in the investigation. The victim's car was later found in Las Vegas containing a wedding ring and the keys to the handcuffs with which she was bound. The defendant had pawned some of the victim's jewelry two days before police found her body. Defendant was convicted based on those facts of first degree murder, first degree kidnapping, and common law robbery. He raises four different issues on appeal, one with regard to suppression, one with regard to the sufficiency of the evidence of kidnapping, and then two evidentiary challenges. With regard to suppression, the defendant argued that the trial court expanded the inevitable discovery doctrine by relying on the possible discovery by civilians unconnected to law enforcement. Remember, the inevitable discovery doctrine is if police commit some illegality in the obtaining of evidence, that evidence is still admissible if the state can show that that evidence inevitably would have been discovered during the course of investigation, even without the alleged illegality. I think the argument here was maybe the police didn't have proper authorization to enter the home. And what the trial court rejected that argument saying, well, clearly her family is concerned about the victim. They had contacted law enforcement. Somebody eventually would have found the body. The Court of Appeals here found that there was ample evidence that the victim's body would have been discovered by her family or by the landlord who had begun eviction proceedings. Therefore, the trial court did not err in its application of the inevitable discovery doctrine. And then as sort of an afterthought, Court of Appeals added that there was evidence that the defendant had permanently abandoned the residence that he had left the area and had not paid rent for the month of August, and where he had abandoned the premises, he didn't have standing to challenge that search. It's not clear from the opinion whether that argument was raised by the state below, but the Court of Appeals found that to be additional evidence supporting the introduction of this evidence despite any illegality that might have arisen from the officers entering the house. What really turns out to be the problematic issue here is whether there was sufficient evidence of kidnapping. The Court of Appeals recites this rule to avoid a double jeopardy problem that confinement, restraint, or removal for kidnapping requires a removal separate and apart from that inherent in another felony. This is a rule that I wrote about in a recent criminal law blog in a case called Staphy Andrews, where the Court of Appeals had dealt with this combination of kidnapping and the other felony in that case was armed robbery. In that case, the Court of Appeals found that this rule about requiring sufficient evidence of kidnapping was violated because there wasn't an additional restraint or confinement over and above what was required for an attempted armed robbery. In this case, the argument was the victim died by suffocation and because of the bindings on her hands and feet, she wouldn't have been able to remove those plastic bags that were over her head. So the Court of Appeals found itself bound by a precedent from the North Carolina Supreme Court called State v. Pravat that there was insufficient evidence to show restraint independent and apart from what was required for the murder. Hence, the trial court erred by denying the defendant's motion to suppress on the basis of insufficient evidence of kidnapping.
[00:27:02.208] [SPEAKER_00] Joe, I just seem to be focused on the dissents today. But what did you think about the point being made there in the dissent that arguably there is evidence that there was some additional restraint beyond what would have been necessary just for the murder itself, as evidenced by the fact that, as you said, there's well, number one, there's just there's an abundance of restraints going on. You know, I mean, it's it's it's hands and ankles and wrists, feet. There's a lot of restraint. Zip ties. But also they point out that there's this evidence of the cigarette butts and a coffee cup back at the scene of the crime that arguably would indicate, tragically, that it seems like perhaps this victim was bound and held there for some period of time before then finally being murdered. What do you make of that?
[00:27:43.748] [SPEAKER_01] There's a chair beside the bed. There's a coffee cup and apparently cigarette butts in an ashtray there by the bed. And the dissent apparently relying on an argument that the state makes is that that is circumstantial evidence that maybe the defendant sat there beside the bed while the victim was bound and before putting the trash bags over her head. The dissent finds that to be enough of a break between the the conduct that caused the death and would support the murder charge and the confinement or restraint that gave rise to the kidnapping charge. The Court of Appeals acknowledges that there are restraints on the victim's legs in addition to her arms, but again says we're stuck with privat where there apparently also were restraints on the victim's legs and that was not enough in this case to distinguish it, to take it outside of that rule that you have to have independent evidence of the kidnapping.
[00:28:30.987] [SPEAKER_00] But for feeling bound by that precedent, that argument does make some intuitive sense to me. That even if you could say, obviously having the victim's hands bound could be part of the victim not being able to resist or rescue herself from being suffocated with the bag. But restraints then down on the ankles would seem like something separate and apart from that. You're not taking the bag off with your feet. So that would seem like a separate restraint. But they... Note, as you said, that, well, that was a factor in this other case as well, and yet it still wasn't deemed to be enough. So I guess we're bound by that.
[00:29:02.652] [SPEAKER_01] Right. And I think moving forward, you know, the takeaway for prosecutors here, if you've got a defendant who's relying on that case Privat or now on this case State v. Moore, I will point out there's subsequent case law that distinguishes Privat on the basis that in Privat, it was not only the evidence of kidnapping, but also the instructions that the trial court gave to the jury in that case allowed them to find the defendant guilty of kidnapping based on those restraints alone. And there are other cases, again, this is detailed in that post I did on the criminal law blog, where the trial court gives the jury an instruction that for kidnapping, you have to find restraint or confinement separate and apart from what was necessary for the murder. That's not going to save you if a reviewing court finds insufficient evidence was presented of the restraint, but it might be some additional evidence that the jury at any rate found a break either in time or in circumstance so that there was an independent restraint giving rise to the kidnapping charge, not
[00:29:57.083] [SPEAKER_00] only what was required for the murder. So this is certainly a significant one for any prosecutors or law enforcement who find themselves facing a similar set of facts. But really, the inevitable discovery portion that you talked about first is the one that jumped out candidly for me a little bit more, you know, on this idea that it is going to be inevitable discovery, even if it is something totally unrelated to law enforcement, like family members or landlords, that that would be the inevitable discovery. You know, given that we still live in a state that does not recognize a viable good faith exception i think sometimes prosecutors find themselves looking at things like independent source or inevitable discovery as an alternative way to try to justify the discovery of some kind of evidence and so i think this is it's helpful to have a recent one like this but i just also like to remind people you know that Inevitable discovery means it inevitably would have been discovered regardless of the fact that this happened. Sometimes because we don't have good faith, sometimes people want to argue it as, well, if we hadn't done this thing that you're saying was not allowed, here's what we would have done instead. And that's a distinction that's not going to fly. But here in this case, as you pointed out, inevitably, I mean, the landlord is going to be coming into that apartment. Family members are going to be coming around looking. So
[00:31:14.134] [SPEAKER_01] But just to put a fine point on that, Jonathan, because the rule is typically stated in terms of the evidence would have been inevitably discovered by law enforcement. And what Moore recognizes is that the evidence need not be inevitably discovered by law enforcement, but there has to be some showing that inevitably would have wound up in the hands of law enforcement. So I'm not sure if it would work if the state merely shows that somebody maybe would have stumbled upon this evidence at some point later down the road, but where it's a victim who is bound and gagged and dead in the bed, certainly that's something that the police inevitably would have been made aware of, even if it had been the landlord or her family that had found it. So the fact that maybe some citizen could have stumbled upon the evidence might be not enough, but if there is in addition to that evidence that that citizen would have turned it over to law enforcement or that law enforcement would have found out about that evidence through some chain of circumstances, then you're going to have a better argument that that meets that inevitable discovery doctrine.
[00:32:10.105] [SPEAKER_00] Yeah, absolutely. Can't imagine anybody would have walked into this scene and not immediately been calling 911.
[00:32:15.335] [SPEAKER_01] Absolutely. That's right. And then just real quick, there were two evidence issues also in this case. The Court of Appeals opinion doesn't deal with them extensively. There was an argument that the trial court erred by admitting testimony from the victim's mother regarding a prior incident in which the defendant put his hands around the victim's neck. The Court of Appeals concluded the defendant failed to show prejudice, giving overwhelming evidence of his guilt. The defendant also argued that there was an error in the exclusion of certain testimony, but he failed to preserve that and the Court of Appeals sort of summarily concluded that the trial court did not commit reversible error by sustaining the state's objections to that evidence. That's all folks for this episode. Today we discussed State v. Ellison regarding a search warrant where the warrant contained the photographs of the wrong address, State v. Hunt regarding inadmissible opinion about accident reconstruction, and State v. Moore regarding sufficient evidence of kidnapping. 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 beautiful 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 want us to discuss on the next episode, please contact us. My name is Joseph Hyde and I can be reached at jhyde at sog.unc.edu. That's jhyde at
[00:33:40.510] [SPEAKER_00] sog.unc.edu. And I'm Jonathan Holbrook, and I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot org. John, thanks for the discussion.
[00:34:04.000] [SPEAKER_01] Good night and good luck. Joe, thank you. Hope it helped.
[00:34:15.980] [UNKNOWN] Thank you.