Episode 5: Burris, Graves, and Little

[00:00:05.870] [SPEAKER_00] In Mitchell v. Wisconsin, the United States Supreme Court held that exigent circumstances almost always exist to conduct a warrantless blood draw when an unconscious driver is taken to the hospital. The North Carolina Supreme Court recently affirmed the first application of that rule by the North Carolina Court of Appeals in a case called State v. Burris. We'll be discussing that case today as well as two other criminal cases recently decided by the North Carolina Court of Appeals. 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.
[00:00:50.503] [SPEAKER_01] So, Joe, our first case is the North Carolina Supreme Court's opinion in State v. Burris, but really all we get there is per curiam affirmed. So what exactly is the court affirming here?
[00:01:01.018] [SPEAKER_00] Right, John. So in order to get the facts and the holding in Burris, we actually have to go back to a Court of Appeals opinion from 2023. And in that case, we find that on the evening of November 22, 2014, Trooper Lancaster responded to a call for service regarding a one-vehicle accident on Newfound Road in Buncombe County, North Carolina. The trooper found a truck that had run off the side of the road and sustained extensive damage. The trooper found defendant lying outside of the vehicle, trapped under a steel fence, bleeding heavily, unresponsive. The trial court found, although I'm not sure this fact appears in the Court of Appeals opinion, that Newfound Road is a straight roadway, not one that a driver could easily veer off just by not paying attention. The defendant smelled of alcohol. The trooper discovered open beer cans both inside and outside the vehicle. There was blood both inside and outside the vehicle. Ultimately, the defendant was airlifted to Mission Hospital. Defendant was unconscious and was sedated and still unconscious when the trooper arrived at the hospital about an hour later. Trooper Lancaster requested a blood draw and significant here, the trooper made no attempt to obtain a search warrant. The defendant was eventually convicted of driving while impaired and reckless driving and appealed. And on appeal, he raised three different issues. One was the admission of accident reconstruction evidence. Second was he argued that there was insufficient evidence that defendant was actually the driver of that vehicle. And third, he made a motion to suppress the warrantless blood draw. With regard to the admission of the accident reconstruction evidence, the Court of Appeals agreed that lay witness testimony is generally confined to a witness's personal observation. This came up, John, I think in a recent case we discussed, State v. Hunt. The same issue arose where an officer had tried to give evidence of the cause of a particular car accident without being tendered as an expert. Court of Appeals says that's a problem under Rule 701.
[00:02:47.768] [SPEAKER_01] And I think they're sort of saying the same thing here, that this witness can talk about what you yourself saw, but we're not going to get into speculating about how things came to be that way unless you're qualified as a reconstruction
[00:02:57.420] [SPEAKER_00] expert. Right. Yeah, that's right. There's not a lot of analysis here really given to that determination. The Court of Appeals agreed that the trooper's opinion testimony that the defendant was the driver, which he had not personally seen, was inadmissible. But the Court of Appeals went on to find that the defendant failed to show he was prejudiced by that error in light of the fact that the trial court gave a curative instruction that the jury was to consider the trooper's testimony only as to what he personally observed, and given the defendant's failure to object to other evidence, tending to show that the trooper believed that the defendant was the driver in this case. With regard to the argument that there was insufficient evidence that the defendant was the driver, the court of appeals likewise made pretty short work of that argument. The defendant was found alone at the scene of an accident. There was evidence that the defendant was the registered owner of the vehicle. The court of appeals said that was sufficient evidence that defendant was the driver of this vehicle. Then there was that third issue, and this is the one that took it up to the North Carolina Supreme Court as to whether there was error in the trial court's denial of the defendant's motion to suppress the warrantless blood draw. The Court of Appeals recognized that blood tests are generally considered a search under both the state and federal constitution. Hence, blood draws may be performed only after obtaining a search warrant by obtaining the suspect's valid consent or under exigent circumstances with probable cause. Here, it was indisputable that the trooper did not obtain a search warrant. The statutory implied consent provided by the DWI statutes had been held insufficient to satisfy the Fourth Amendment in a North Carolina Supreme Court case called Romano from a few years back. So the only viable option here was that there were exigent circumstances with probable cause. And that's where that United States Supreme Court opinion Mitchell v. Wisconsin comes in. In Mitchell v. Wisconsin, a plurality of the United States Supreme Court held that where police have probable cause to believe that the driver has committed a driving while impaired offense and the driver's unconsciousness requires him to be taken to a hospital before a breath test can be administered, they may almost always order a warrantless blood draw to measure the driver's blood alcohol content without offending the Fourth Amendment. Here, the parties had discussed Mitchell v. Wisconsin at the trial. The trial court made this ruling that exigent circumstances existed, and the Court of Appeals ultimately affirmed that ruling, saying that the trial court's findings show that the state met its burden of showing exigency under Mitchell. What's interesting here is that in an opinion that was actually longer than the majority opinion, Judge Tyson dissented on the issue of the warrantless blood draw. It's rare to see an exclamation point in a judicial writing. You'll find one in this dissent. It goes on quite a bit about the Fourth Amendment and the Fifth Amendment and about this allegedly unconstitutional burden shifting. Tyson notes in his dissent, and it was a point that the majority kind of glossed over, that neither party to the appeal actually argued Mitchell v. Wisconsin. It goes up to the North Carolina Supreme Court on the basis of that long dissent, and that's why we get this per curiam affirm. The North Carolina Supreme Court is affirming the decision of the Court of Appeals majority that found Mitchell v. Wisconsin was applicable in this case, that there was exigent circumstances for that warrantless blood draw based on the probable cause that the driver had committed this impaired driving offense and the fact that he was unconscious during all of the relevant time period.
[00:06:15.149] [SPEAKER_01] So Joe, what about some of the points that are being made there in the dissent? Like the idea that it's not always going to be exigent circumstances just because we may have this injured person. You know, that seems to be what Judge Tyson is talking about is here where it says the fact that a suspect fell unconscious at some point or was going into surgery does not equate to insufficient time for the trooper to seek and demonstrate probable cause to obtain a warrant, or goes on to make points about how the hospital probably would be drawing the blood anyway, or if it's so urgent that the person unfortunately ends up deceased, then there wouldn't be criminal charges anyway. Some points being raised about why maybe we should not think that it's always exigent circumstances, but that's not where we land in the majority.
[00:06:54.142] [SPEAKER_00] Well, what the majority does with that is say a lot of those objections, a lot of the basis of that is really answered by this United States Supreme Court. What the plurality held in Mitchell v. Wisconsin was that where you have probable cause to believe the driver has committed this impaired driving offense, I'm sorry, where the driver is unconscious and not able to provide a breath test or give valid consent to a blood draw, that that will almost always give rise to these exigent circumstances, almost as a matter of law. So like... A lot of the arguments raised by the defendant and the arguments echoed in that dissent are answered by the United States Supreme Court opinion. That's where I want to highlight, this is a very powerful tool for prosecutors moving forward. When you have the circumstances to meet that test, when you have probable cause to believe that the driver committed an impaired driving offense and an unconscious driver, a driver who's not able to give verbal consent or to provide a breath test, Mitchell v. Wisconsin is going to be your go-to case to say, look, that constitutes an exigency that will get us into that exception for the warrant. We have exigent circumstances there, and it's not a violation of the Fourth Amendment to get a blood draw, even without a search warrant.
[00:08:01.343] [SPEAKER_01] Joe? But you also mentioned this argument or this issue about potentially burden shifting, right, that if it's almost always going to be exigent circumstances and then we're essentially putting it back on the defendant, you know, make it his burden to prove that this is not a situation that falls under the almost always. But again, the majority here applying Mitchell didn't seem to see it that way.
[00:08:19.548] [SPEAKER_00] Yeah, that's a curious kind of circumstance that arises from the United States Supreme Court opinion. They say this will almost always constitute exigent circumstances, but in Mitchell itself, it remanded to give the defendant an opportunity to present evidence that this was one of those strange circumstances where it would not constitute an exigency. The Court of Appeals here in Burris, and in the opinion that the North Carolina Supreme Court ultimately affirmed per curiam, found that it was not necessary to remand for the because the parties had engaged in this extensive conversation about the application of Mitchell v. Wisconsin at the trial court below, right? Defendant had had the opportunity to make that showing and had not made that showing, so it was not necessary in Burris to remand for the defendant to show that this is one of those unusual cases.
[00:09:04.672] [SPEAKER_01] And, you know, just as to the argument itself, I also thought that section was interesting where the majority explains that the court was not saying the defendant has the initial burden to prove a lack of exigent circumstances. They recognize that the state has this burden of showing exigency, but stating that the state meets this burden by showing the defendant was unconscious and in need of medical attention at the hospital. And so then they're simply recognizing that once the state has made that showing that then the defendant has the opportunity to try to rebut. So I thought that was sort of an interesting explanation of why perhaps it feels like burden shifting, but it's not.
[00:09:37.893] [SPEAKER_00] Right, right, precisely. And just not to put too fine a point on it, it's not only that the defendant is unconscious. The state has to make a proffer of evidence that there's probable cause to believe that this impaired driving offense has occurred and that the defendant was the perpetrator of that. But once you've got those two conditions, It's not necessary to make an additional showing of exigency, right? Once you've got probable cause to believe that there's an impaired driving offense and the defendant is unconscious or unresponsive at all relevant times, that on itself alone is going to constitute an exigency to get you into that exception to the warrant requirement.
[00:10:10.601] [SPEAKER_01] So, Joe, to be clear, we're not telling prosecutors or law enforcement or anybody else, don't get a warrant if you could, right? Right. Just that if it is exigent circumstances, which presumptively I would say now this almost always is going to be, you don't have to if it's more important to get this person taken to the hospital and finish your investigation.
[00:10:29.278] [SPEAKER_00] That's right. John, it's always a better idea to get a warrant when you have time, when you can. But this gives the state a little more flexibility in those circumstances when that's maybe not a viable possibility.
[00:10:40.082] [SPEAKER_01] All right, good tips for prosecutors and for law enforcement, and certainly some arguments that I know folks have heard in these cases before. But Joe, I think we wanted to move on to our second case for this set, which was State v. Graves. This was decided by the North Carolina Court of Appeals on November 5th of 2024. It goes back to an incident that started in March of 2021 and then carries over into later April of 2021. It all really begins with law enforcement officers going to a hotel in Kannapolis, North Carolina, They're looking for a person named Lena to try to arrest Lena's sister, Mackenzie. But when they arrive at this hotel, what they see is an SUV pulling into the hotel parking lot, and they notice the driver of the SUV drinking something out of a brown paper bag. So the officers go over to the SUV. When they do that, they smell marijuana, ask the occupants to get out of the SUV. That ends up being this defendant and a passenger. And the officers then observe a firearm present inside the SUV. And so the defendant and his passenger are arrested and handcuffed. During this encounter, incidentally, this other person, McKenzie, comes out of the hotel. Officers initially thought they were there looking for Lena instead, but now they realize that the warrant was actually for McKenzie, and so they arrest McKenzie. But the point of all that being that the defendant, seeing all of this happen, believes that he was set up by McKenzie. And the officers assure him that that is not the case. He's just simply a person who happened to be in the wrong place at the wrong time. But the defendant does not seem to be convinced of that. The defendant posted bail and got out of jail on that charge on April 9th of 2021, wearing a bondsman-required ankle monitor. But following that, April 11th of 2021, some person with the username of JPCartel sends out a Facebook social media message stating... got popped, stay away from Mackenzie Morgan and Lena Morgan. And then on April 13th, the same user sends another message, Lena Morgan got me busted. So the state's position of course would be that this is the defendant indicating that he believes these people were responsible for him getting arrested. Unfortunately, a few days later, April 18th of 2021, surveillance cameras capture somebody riding by a convenience store, driving a red vehicle, and that person shoots and murders Lena. The convenience store clerk is able to help initially identify the defendant based on having seen him there before, seen him a few times a week in the year before the shooting. There's other evidence connecting the defendant to this scene that the officers reach out to the bail bondsman who can access this ankle monitor data, puts him there at the scene. He also possessed a key inside his pocket to a red Toyota Camry, a vehicle that was similar to what was seen on the surveillance camera. So when this case comes to trial for murder, part of the evidence offered by the state includes Facebook messages regarding this Lena and Mackenzie. And to get those things admitted, they offer a certificate of authenticity of domestic records of regularly conducted activity from Facebook. to offer these as business records under Rule 8036, rather than offering an affidavit signed before a notary or a testifying witness to authenticate the messages. And so an individual from Facebook, Adeline Ballard, signs this statement as their custodian of records. Now this certificate signed by the custodian of records indicates that it is a declaration made under penalty of perjury. So those records are admitted along with this other evidence and ultimately the jury at trial does find the defendant guilty of first degree murder. The issue here on appeal are two things being raised by the defendant. First, challenging whether this was a sufficient or proper way to authenticate these records to begin with. And then essentially, second, even if it was, was it a confrontation clause violation by not allowing him to challenge essentially the custodian of records or the person making the certificate? So we're
[00:14:29.952] [SPEAKER_00] still talking about the admissibility of these Facebook posts, right? Right. How to authenticate Facebook posts as business records. Exactly. If I got that
[00:14:37.163] [SPEAKER_01] right? Exactly. The only issue that we're really grappling with in this appellate opinion is were those records properly authenticated to be admitted as business records? And if they were, is the way that they did that itself a confrontation clause violation? We're not really in this case digging into some of the other potential issues that might come up with business records. You know, have we sufficiently tied it to this defendant? How do we know these really are his statements, admissions of a party opponent? You know, certainly all those would be part of the debate that I think prosecutors would be having in court. But the only real issue we've got in this case is, were the records sufficiently authenticated, and was the means used to authenticate them itself a confrontation clause violation? And the court here answers both of those questions in the state's favor of first addressing the way that these records were authenticated. They talk about this certificate from Facebook that was offered by the state. And again, this is not an affidavit, right? It's not something that is signed before a notary the way an affidavit typically would be. And they cite to some of our cases that acknowledge like this case Geiger v. Clement from 2020. that says the case law generally expects affidavits to be notarized if they are to be admissible. But we had another case not long ago, State v. Hollis, dealing with a similar issue. And I would also just point out, this is important for all the prosecutors to know, Rule 8036 has been amended to deal with this exact issue, right? Rule 8036 has been amended to say that the way we can authenticate these business records is through an affidavit, or through a certificate that is certified under penalty of perjury in accordance with the federal statutes. And so certainly we've got that way to go. But I thought Hollis was interesting, the one that they referenced back here, where they say that not only does Rule 8036 contain no such explicit affidavit requirement, referencing, for example, being signed and notarized to count as an affidavit, but the legislature has subsequently modified the statute to explicitly allow authentication via statements made under penalty of perjury. And so here they're finding, yes, this certificate is sufficient. This certificate made under penalty of perjury is sufficient to authenticate the records just like an affidavit would be. And that's the conclusion that the court reaches. An affidavit is valid and authenticated when it is submitted under penalty of perjury as confirmed in that State v. Hollis case. This was, and so therefore it was sufficient.
[00:16:59.821] [SPEAKER_00] So confrontation aside, you can get a business record in with a paper trail. Is that
[00:17:05.749] [SPEAKER_01] the option? Exactly. I mean, certainly we could bring in the records custodian to give that live testimony if that's what they're going to do. Hi, I'm Jonathan Holbrook. I'm here from Facebook. And I can tell you these records were made at or near the time. They reflect business activity. I can say all of that. Or if I've got an affidavit, whether that's something that's signed and notarized or not, or if I've got that certificate from this records custodian swearing under penalty of perjury. And, you know, Hollis discussed this a little bit more than we're getting in this case, but they sort of explain the reasoning behind that, you know, that the whole point of the affidavit or swearing to it under perjury is basically just to raise the seriousness in the person's mind that, hey, this is important, this is for court, we need to make sure you've actually checked that you know these really are your records, you really are telling the truth, and that whether the person has to do that before a notary, whether they're sworn, whether they're swearing to and under penalty of perjury, all of that sort of achieves the same purpose. You know, I thought Hollis was also an important one for prosecutors to go back and reference because there was a little more discussion in that case about the idea that perhaps if the language isn't exactly the same as the perjury statute referenced in our rule 8036, I think there would be a little more wiggle room under cases like Hollis, as long as the certificate is basically saying what it needs to say, you know, that I am a person who would know and I am making this statement for which I can be held accountable to verify to you that these records are what they purport to be. But, you know, Joe, that also sort of forecasts a little bit what the other argument is coming from the defendant here about, OK, if it's essentially the same thing as bringing in the records custodian to vouch for these records, then it feels like a confrontation clause violation. You know,
[00:18:42.337] [SPEAKER_00] I mean, if that's what about that confrontation clause problem?
[00:18:44.902] [SPEAKER_01] Right. I mean, you know, it's it's an understandable argument, you know, that this certainly feels like a record that was made by Facebook at your request solely for use here in court. And now you're just going to confront me with this piece of paper. The person swore to or promised under penalty of perjury or whatever it may be. If that person's not here. That feels like a confrontation clause violation. But again, the Court of Appeals decides that one in the state's favor and says it's not. And I think the important thing to remember here is that what we're talking about, really the evidence against the defendant, are the underlying business records. So I think we start there. And the court points out that those do not run afoul of the confrontation clause. They, in fact, quote, going back to Crawford and Melendez-Diaz, but the court here says business records in general are non-testimonial in nature. And then they talk about something like the certificate to vouch for those records. And they distinguish that from something like a certificate of analysis, from an expert witness or somebody from the lab using a DWI case or a drug prosecution, that's different. And they referenced that Melendez Diaz versus Massachusetts case. And they say that while certificates of analysis prepared for trial are testimonial, routine business records authenticated by custodians do not fall into this category. and are admissible without triggering a defendant's right to confrontation. And they pin that back to the Melendez-Diaz versus Massachusetts case.
[00:20:11.950] [SPEAKER_00] Is this right, Jen? Because it's not really the records custodian who is testifying against the defendant. The evidence against the defendant is the record itself. And the records custodian is just saying the record is what the record purports to be.
[00:20:23.349] [SPEAKER_01] I think that's exactly right. And you know, Joe, they don't really get into it a whole lot here. But I mean, if we think about our own rules of evidence, right, Rule 104, 1101, you know, one of the circumstances where the rules shouldn't apply is when we're just trying to verify that the evidence is what it is, right? You know, we're trying to establish the admissibility of the evidence or something like that, similar to emotion is suppressed or anything else and so just this person's certificate is not actually the record like the facebook post providing a motive for the homicide this is just the person saying i can tell you these are the business
[00:20:52.964] [SPEAKER_00] records now
[00:20:53.825] [SPEAKER_01] you know again the admissibility of the business records if there's i don't know secondary hearsay or other objectionable material in there that's a separate fight but for authenticating them we should be able to do that with a certificate with an affidavit with the testimony any of those means laid out in rule 8036 And that if we have something like an affidavit or certificate, I think this case clarifies that we don't have a hearsay problem, nor do we have a confrontation clause
[00:21:18.907] [SPEAKER_00] problem. You don't have to have the live testimony of the records custodian to get this stuff in as a business
[00:21:23.260] [SPEAKER_01] record. And thank goodness, Job. because I think just about any prosecutor will tell you, not gonna be real easy to get somebody here from Facebook, from Sprint, from AT&T, from all these other entities for every single case. And so I think this is a good appellate opinion for us to bear in mind to verify that these procedures we have to make this a little bit easier on everybody will pass constitutional muster.
[00:21:43.844] [SPEAKER_00] Our third case today is Statefee Little. This is the case where the Court of Appeals granted the defendant a new trial based on error in the jury instruction. But just to back up a little bit, in August of 2022, the defendant, Jennifer Crook, and their 15-year-old son, whom the Court of Appeals called Trey, were living in an apartment in Lexington, North Carolina, On August 10th, Trey and his girlfriend attended a birthday party at a trampoline park, and Trey's parents came to the girlfriend's home to pick him up afterwards. They were there outside on the lawn, and while they were outside of the girlfriend's home, defendant actually assaulted his son Trey with a pair of needle-nose pliers, gripped him in the chest. Police came to the girlfriend's house the next day looking for Trey. He had apparently run away from home, and her father reported to the police the assault that the defendant had committed upon his 15-year-old son. Police eventually found Trey sleeping on a picnic table in a public park and contacted the Department of Social Services. At that point, defendant and Jennifer Crook were charged with child abuse. Defendant admitted to police that he grabbed Trey's shirt with the pliers, quote, as a joke, but he denied that he had touched Trey's skin during that altercation. Later, when Child Protective Services conducted a home visit, they observed a six-year-old girl, whom the Court of Appeals called Kaylee, pull a silver gun out of the couch and pointed at her brother, laughing. The Child Protective Services officer told the girl to put the gun away. She pulled it out again, and ultimately, Child Protective Services called the police. The police recovered an unloaded .32 caliber Smith & Wesson revolver from under the couch. The police, while they were there at the home, asked the defendant where he got the gun. And defendant said, quote, I found it. And then at that point, defendant was arrested for possession of a firearm by a felon. The defendant ends up getting charged with two counts of child abuse. The first count of child abuse was for inflicting physical injury on Trey with those needle nose pliers. And the second count of child abuse was for creating or allowing a substantial risk of physical injury to Kaylee, that is the six-year-old girl, by leaving a gun unsecured where the children had access to the firearm. At trial, however, the defendant was convicted of possession of a firearm by a felon and only one count of misdemeanor child abuse, that which arose from the allegation of physical injury on Trey. On appeal, defendant raised three issues. One, he argued there was insufficient evidence of possession of a firearm by a felon. Second, he argued there was error in the jury instructions on misdemeanor child abuse. And then third, he argued that there was a jury unanimity issue with regard to that misdemeanor child abuse. With regard to the first argument, the sufficiency of the evidence of possession of a firearm by a felon, the Court of Appeals made fairly short work of that. The defendant argued there was insufficient evidence that he had actual or constructive possession of the firearm that the little girl had pulled out of the couch and had been seized by police before it was ever seen in the defendant's hands. The Court of Appeals recited the rule that acknowledging possession of the gun disposes of any argument that there is no evidence of possession.
[00:24:40.474] [SPEAKER_01] And, you know, Joe, what I thought was interesting there is you're right. His acknowledgement, I found it. That seems to be a critical piece for the court. But I think sort of a warning for prosecutors or officers is their discussion about if we didn't have that, it seems like these other pieces we do have would not have been enough to establish constructive possession. And even though, I mean, as you mentioned, sort of where the gun is found in the home. And then I think there's a discussion about how when the adult who was there at the house learned the gun had been found, defendant is the very first person they call. And, you know, the court mentions those things, but says the location of the gun gives rise to access and the phone calls concerning the gun may be regarded as suspicious behavior. But those in isolation would not support a finding of constructive evidence. This
[00:25:25.101] [SPEAKER_00] arose, the problem was apparently there were a number of adults living in the home as well as a number of children, and just merely finding a firearm there maybe wouldn't have been enough without some evidence that it was in the exclusive control of the defendant, say in his bedroom with his personal items or something like that. But just a firearm under the couch, where the defendant is one of several adults in the home, maybe might not have been sufficient. But here we've got, in addition to that evidence, the evidence that the defendant made that statement to police. First, no other adult in the home claimed that the firearm was theirs. But then on top of that, when the police asked the defendant where he got the gun, he said, I found it. And the Court of Appeals found that statement to be a sufficient acknowledgement of possession to get the state over that hump of submitting this charge to the jury.
[00:26:08.241] [SPEAKER_01] So I think good for prosecutors to know we can build that case for possession out. We can assemble pieces of circumstantial evidence plus a single admission. But worth bearing in mind that each piece in isolation may not be enough to get you there.
[00:26:20.050] [SPEAKER_00] Right, right. And the defendant's admission here certainly was crucial. At least the Court of Appeals found that critical to its ruling. The problem really arose in little because of that jury instruction. As I said, there had been two charges of misdemeanor child abuse. The defendant was acquitted of one and the only one that really mattered here was that first count of child abuse for inflicting physical injury on Trey. The prosecutor asked the trial court to expand that in its instruction to the jury and instruct the jury that the defendant could be convicted not only based on physical injury, but also based on creating a substantial risk of physical injury other than by accidental means to Trey. The problem was that theory, that sort of additional basis for finding misdemeanor child abuse had not been alleged in the indictment. The Court of Appeals recited the rule that it is error, generally prejudicial, when instructions allow the jury to convict on a theory not supported by the indictment. It noted that there's an older North Carolina Supreme Court opinion construing the relevant statute, General Statute 14-318.2, that's misdemeanor child abuse, as actually creating three separate offenses. So it's not different theories of proving one offense, but actually three separate offenses. One, arising from the infliction of physical injury. Two, from where the defendant allows physical injury to take place. And then third, allowing a substantial risk of physical injury. Here, the defendant was indicted for inflicting physical injury, but then the jury was allowed to convict not only on the basis of inflicting physical injury, but also that the defendant created a substantial risk of physical injury other than by accidental means. The Court of Appeals concluded that the trial court committed prejudicial error when it instructed the jury that defendant could be convicted on the basis of a theory or a charge that was not contained in that original indictment. Because of that holding, because the defendant was entitled to a new trial on the basis of that error in the jury instruction, the Court of Appeals found it unnecessary to reach the issue of jury unanimity. Now, there was a concurrence in this case, and Judge Carpenter raises an interesting point. Judge Carpenter pointed out there's a recent North Carolina Supreme Court cases, State v. Singleton and State v. Stewart, In Singleton, that was the case where the North Carolina Supreme Court had departed from the old common law rule that trial court lacks jurisdiction when there is a fatal defect in the indictment. In other words, where the indictment failed to allege an element or didn't contain this precise language that it had been prescribed for a charging document, then the trial court's jurisdiction was divested. In Singleton, the North Carolina Supreme Court departed from that rule and said, for these merely facial defects, right, omission of an element, so long as the defendant had notice of what the charge was, that we're not going to say that the trial court's jurisdiction is tied to the precise language of an indictment. Now, Judge Carpenter recognized that that wasn't exactly the problem in Little, right? Everyone agrees that the indictment here was sufficient. But what Judge Carpenter said was the thrust of Singleton and Stewart seems to be indictment-related arguments which unduly elevate form over substance, thus undermining justice or merited punishment, will not stand, provided the defendant was sufficiently noticed of the charges to prepare a defense. But for that older North Carolina Supreme Court opinion that had construed the misdemeanor child abuse statute as creating three separate offenses, Judge Carpenter would have found the defendant was adequately provided with sufficient notice that he was charged with misdemeanor child abuse, and the fact that the jury had been given an additional theory of child abuse other than the one alleged in the indictment should not entitle the defendant of a whole new trial here. But Judge Carpenter found that the Court of Appeals was bound by that older North Carolina Supreme Court opinion that said, these are not theories, but actually three separate charges. So the problem here was actually bigger than allowing a theory, an unsubstantiated theory to go to the jury. This was allowing the defendant to be convicted of a crime for which he had never actually been indicted. And on that basis, the Court of Appeals awarded the defendant a new trial.
[00:30:08.490] [SPEAKER_01] But you know, Joe, I think this is an interesting example of something you and I have talked about on this podcast before. On the one hand, we have State v. Singleton, which seems to represent a sea change in how we're going to look at indictment and pleading issues. But then at the same time, in these individual cases, we're following precedent that sets out a certain rule that is not entirely clear how that precedent should be applied in light of Singleton and should it be changed or not. But I think cases like this are an example of how I think we're going to just have to work through that case by case. I mean, is this change encompassed or invalidated by Singleton or does it survive? I think this is a good example of that. We're going to just have to sort of tackle that issue by issue and area by area as we figure out how far Singleton goes and what it means and what it doesn't.
[00:30:55.285] [SPEAKER_00] John, I think that's right. Singleton represented such a break from the prior practice in North Carolina that the particular issue that it was trying to resolve has reverberations, has implications beyond the particular holding of that case. And I think that's what Judge Carpenter was picking up on here. Judge Carpenter found that the Court of Appeals was bound by that prior pre-Singleton rule, though, in this case. And then going forward for prosecutors, unlike Unlike Burris, where we have this new United States Supreme Court opinion that gives us kind of an additional tool to use in search and seizure cases, little really should stand as a warning. When you've got allegations and an indictment, you've got to be very careful with the instructions that you're requesting from the trial court, and any departure from the allegations in the indictment or in the warrant are potentially going to create a problem in those jury instructions. You don't want to create any kind of variance so that the defendant can make the argument that there's an instruction that's not supported by sufficient evidence or by allegations in the charging document. Well, that's all for today. In this episode, we discussed State v. Burris regarding exigent circumstances, State v. Graves about how to authenticate Facebook posts as business records, and State v. Little, where the Court of Appeals awarded a new trial based on an instruction that was not supported by the indictment. 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 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'd like for us to cover, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at sog.unc.edu. And
[00:32:48.288] [SPEAKER_01] I'm Jonathan Holbrook, and I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g. Thank you, John. That would be the showing for the state. Sounds good, Joe. Thanks. Hope it helps.