Episode 7: Clark, Vaughn, and Garmon

[00:00:11.404] [SPEAKER_01] In Smith v. Arizona, the United States Supreme Court held that for purposes of the confrontation clause, when one expert witness testifies to the conclusions of another non-testifying expert, then the statement has been admitted for the truth of the matter asserted. The North Carolina Court of Appeals has now applied that rule to overturn a defendant's drug conviction. We'll be discussing that case, State v. Clark, today, as well as a few other cases decided in December 2024. 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.
[00:00:53.087] [SPEAKER_00] Joe, you and I recently did a presentation on Smith v. Arizona for prosecutors, but this seems to be the first time the case has been applied by our state appellate court. So tell us about State v. Clark.
[00:01:03.768] [SPEAKER_01] Right. State v. Clark is going to be the first case that applies that new United States Supreme Court opinion, Smith v. Arizona. What happened in Clark, the facts presented by the Court of Appeals are pretty summary. They don't have a long factual section. Basically, the defendant was on probation and therefore subject to a warrantless search of his residence. At some point, police received information about the defendant dealing drugs from his home. In August of 2020, police searched defendant's home and seized containers of what the Court of Appeals called crystalline substance. A forensic analyst, Ms. Fox, tested the substance and determined that it was methamphetamine. At trial, however, a different analyst named Mr. Cruz Quinones offered an expert opinion based on Fox's report. The defendant was convicted by a jury of possession with intent to sell or deliver methamphetamine, and he argued on appeal that the admission of Cruz Quinones' expert testimony violated the confrontation clause. Now remember, under Evidence Rule 703, an expert is permitted to testify based on otherwise inadmissible evidence. And the North Carolina Supreme Court had held in a case called Ortiz-Zapp and a few cases around the same time that when one forensic analyst testifies based on the conclusions of another, that's permissible under Rule 703. The United States Supreme Court recently held just this past summer in Smith v. Arizona, however, that that procedure of using 703 to kind of bypass this confrontation clause protection was not permitted. That when an expert witness testifies based on the conclusions of another and is really just relaying the conclusions of a non-testifying expert who has not been subject to cross-examination, that that evidence is offered for the truth of the matter asserted. Here, the Court of Appeals concluded that Cruz Quinones relied on Fox's report, just relayed the same conclusions that Fox had reached, and hence that evidence was offered for the truth. That left the open question that had been left open by Smith v. Arizona of whether that evidence was testimonial. Remember, under the paradigm established by Crawford v. Washington, evidence is only admitted in violation of the confrontation clause if it is both offered for the truth of the matter and it is testimonial. And what testimonial has historically meant is created for the purpose of prosecution. In this case, the Court of Appeals concluded that the lab report was testimonial. This lab report was created solely for the purpose and made in aid of a police investigation. I think it actually quoted from portions of that report that said it was for the purpose of prosecution and not for other purposes other than that. The Court of Appeals relied on a North Carolina Supreme Court called State v. Craven that basically had established that proposition that when a lab report is created solely for an evidentiary purpose and in aid of a police investigation, that evidence ranks as testimonial. So in this case, the Court of Appeals concluded that Cruz Quinonez's reliance on Fox's lab report implicated the defendant's confrontation clause rights.
[00:04:00.550] [SPEAKER_00] And, you know, Joe, that reliance that the court puts on that state versus Craven, I think, gets to one of those issues you and I were talking to the prosecutors about back at the summer meeting about this case, because in that Craven opinion, really what they're talking about when they say the report, really, we're talking about that final report, you know, the affidavit, the summary of opinion, those two pages at the front of the report we get from the crime lab. But that's sort of what I struggle with a little bit in this opinion, because Yes, I think we've known since Melendez-Diaz that that kind of formal sworn affidavit report report at the beginning is going to be testimonial. But I don't know that that really answers the question for us about what about a true substitute analyst who's not relying on those two pages, but just looking at the notes and the raw data from the other 99 pages in the report. I don't know whether we would still say those are testimonial. I don't know that that's clear, but I just I struggled with that a little bit in this case because I don't know that that situation is really what we were talking about with a true substitute analyst rather than a, you know, what they called a surrogate or a mouthpiece witness who's kind of just repeating that final opinion.
[00:05:08.302] [SPEAKER_01] And if I remember correctly, Jonathan Smith v. Arizona left open the possibility that there are portions of that other expert's report that might come in as non-testimonial, right? Evidence of whether the proper procedures had been followed, whether the machine was working properly, whether the certain procedures in the lab. Now, certainly what you're talking about when you get to this expert's kind of final conclusion that this substance is what it purports to be, Maybe we get into more Confrontation Clause problematic territory, but it doesn't rule out the possibility that there are other parts of that absent experts report that might come in for a
[00:05:38.704] [SPEAKER_00] non-testimonial purpose. You know, that was sort of what we discussed, this idea of the primary purpose, and then also that issue of the formality and the solemnity. The original analyst's bench notes and raw data may not have the formality and solemnity that something like the final certified affidavit opinion in those first couple of pages would have. And our view was that that's also an issue raised in Smith and a number of the other cases sort of leading up to it. We may not really have the final word on this one yet, right, Joe? Right. Well, actually, the
[00:06:09.904] [SPEAKER_01] North Carolina Supreme Court has issued a temporary stay in Clark. So it looks like the North Carolina Supreme Court might weigh in on this. But ultimately, what the Court of Appeals held based on Smith v. Arizona was that Fox's statements were hearsay that is admitted for their truth. based on Craven. The Court of Appeals concluded that Fox's statements were testimonial. And then putting those together, there was no evidence that defendant had had the opportunity to cross-examine Fox, the person that had created that report that indicated that this substance was methamphetamine. So the Court of Appeals ultimately concluded that this was a Confrontation Clause violation. And then turning to whether it was prejudicial, there was just a single sentence, as this opinion testimony was the state's proof regarding the seized substance identity. We hold that this error was prejudicial to defendant in his trial. In other words, this was apparently the only evidence that established what this alleged suspected contraband was. And because there was no other evidence to show that this was, in fact, methamphetamine, the Court of Appeals found that this error entitled the defendant to a new trial. But as you pointed out, Jonathan, the North Carolina Supreme Court has issued a temporary stay in this case, so this might not be the final word.
[00:07:14.983] [SPEAKER_00] You know, prosecutors I know have been eager for some guidance on what does the world look like after Smith v. Arizona, and this is not perhaps the first word we were hoping for, but also not the final word on this, so we'll just have to wait and see. Right, right. Joe, the second case we were going to look at, I believe, was State v. Vaughn, also decided in the same batch. This was a case out of Pitt County, and this began with a fairly routine-sounding traffic stop, 3.30 in the morning on June 8th back in 2019. A North Carolina Highway Patrol trooper sees a car that he estimates is speeding at 60 in a 45, and after confirming that speed at 62 miles per hour with his radar, he initiates a traffic stop. That goes the way you would often expect these kind of stops to go. noting an odor of alcohol coming from the defendant's breath. His eyes are red and glassy. He makes some statements about how he'd consumed an alcoholic drink about an hour earlier, said he was coming from a nightclub. The trooper then proceeds to administer a number of field sobriety tests, like the walk and turn, also does the HGN test and sees six out of six possible clues, puts the defendant into his car and does a portable breath test on him, then administers a second portable breath test on the defendant, getting a positive result on those. He arrests the defendant for suspected impaired driving, takes him to the Pitt County Detention Center, puts him on the intoxilizer ECIR-2, and shows an alcohol concentration in excess of the legal limit. So this case ultimately goes to trial, and the jury finds the defendant guilty of driving while impaired and speeding. And on appeal, he's raising five different issues about the evidence that was presented in that case. First, he's objecting to the admission of the testimony about the radar, and particularly about the foundation that was offered for the radar. We do have rules of evidence and statutes dealing with this under Rule 602, and a particular statute, 8-50.2, that says that radar reading can be offered as corroboration of the officer's testimony about what they perceived the speed to be, but that statute that I mentioned also sets some requirements for the foundation of the radar. The witness needs to testify that They have a proper certificate from the North Carolina Criminal Justice Education and Training Standards Commission authorizing them to operate it. A statute requires testimony about that it was operated in accordance with the procedures, it was approved for use, it had been calibrated and tested and so forth. And so the issue that the defendant is raising is that he doesn't believe that the trooper's testimony really laid all that out. You know, for example, the trooper says, yes, I have a permit to operate this, or yes, it had been calibrated, but didn't really get into the specifics and details, you know, specifying that he was certified by the Criminal Justice Education and Training Standards Commission and so forth. And so the Court of Appeals is looking at that, but ultimately decides that this is not something that specifically requires what we sometimes call magic words, that it doesn't have to directly quote the language of the statute, that the trooper's testimony here, that he was certified, that it had been calibrated and so forth, that was good enough. The court says, as was done here, when the witness provides sufficiently specific testimony, permitting the trial court to logically conclude compliance with General Statute 8-50.2 , trial court does not abuse its discretion in admitting a radar reading to corroborate the speed estimation testimony by the witness. So they settled that first issue, but the defendant had also objected to a couple of other things. For example, evidence was offered about him being advised of his Miranda rights. You know, video, body cam that showed that he had been advised of his Miranda rights. Not his response to it, not statements made in violation of it, but just the fact that he was advised of it potentially being prejudicial. But here, again, the Court of Appeals said that was okay, that the video just of him being advised was properly put before the jury. And a couple of reasons for that, you know, one being that it's cut off immediately after the advisement. We're not getting at anything he did or didn't say after being advised of his Miranda rights. Also, just because it was sort of an issue raised by the defense in this case about whether the officer had followed proper procedures. You know, why are we administering field sobriety tests outside the view of the camera, for example? Or why are we doing this additional portable breath test on him? And so to essentially rebut that allegation from the defense, just showing, and with an instruction for the limited purpose, just showing that the officer had followed proper procedures and protocols, that that was permissible and proper for the state to do. The defense then argues that there was no probable cause for the DWI itself. The court reviews his evidence of the driving and the results of the field sobriety tests and so forth and doesn't have a whole lot of difficulty in rejecting that he had probable cause for the DWI, probable cause for the arrest. They also talk a little bit about the PBT administration test and again says the video for that was allowed but only for this limited purpose and with instructions to the jury about assessing the footage of that administration of the test only to determine the defendant's demeanor and behavior and not for any implication of guilt. The big issue that we get to in this case is about the Intoxilyzer ECR IR2 results. Can I ask you a real quick comment
[00:12:12.977] [SPEAKER_01] about the PBT? Am I remembering correctly that the PBT result is not admissible at trial?
[00:12:17.687] [SPEAKER_00] Right. I mean, we would never tell them that he actually got a .09 on the PBT. At most, we would just say that there was a positive result on that PBT. But there was a question here about sort of the second administration of the PBT. The defendant is arguing in the court's words, Trooper Cruz's improper administration of the second PBT which the state conceded, is a separate issue. And the defendant claimed the footage itself had a tendency to make the existence of the defendant's impairment more probable to the jury's fact finding than it would be without the evidence. But then the court goes on to explain, aware of the potential prejudice to the defendant, the trial court on multiple occasions instructed the jury to assess the footage only to determine the defendant's demeanor and behavior. So it's sort of a similar issue to what's going on with the Miranda video, I believe. But as I said, sort of the crux of this case really comes down to this final issue dealing with the Intoxilyzer ECIR2 results. And the problem here is that there's nothing offered by the state through the witness's testimony to show that that test was performed in accordance with the rules of DHHS by failing to offer evidence of two sequential breath samples that did not differ by more than 0.02 grams of alcohol per 210 liters of breath.
[00:13:30.671] [SPEAKER_01] Okay, Jonathan, just break this
[00:13:31.552] [SPEAKER_00] down to
[00:13:31.753] [SPEAKER_01] me. We're talking about after the defendant is arrested, taken downtown, and is asked to blow into the machine, and the state has to show that there were two tests conducted within a certain amount of time that were within a certain field. Is that...
[00:13:44.188] [SPEAKER_00] Correct? Yes, except I know a number of DWI prosecutors would want to make sure we clarify we're talking about the instrument, not the machine. That's important to us. But yes, the idea that to verify the accuracy of it, we've got to have these two sequential results within the specified period of time, all those other requirements that are set forth. and those two results both need to be within 0.02 of each other, right? And so, as in this case, if, for example, if a person had a 0.09 and a 0.10, right, then they would be within 0.02 of each other. We would only be offering the lower of the two, the 0.09, as the evidence in the case, which is what happened here, right? There were these two results on the test ticket at the defendant's request, uh one of those two is whited out i would presume the higher of the two if they weren't exactly the same and so that only the lower would be presented to the jury and so one of the state's arguments here was well isn't this kind of invited error you know i mean they were basically trying to make sure we excluded the idea that there was a second result but the court's analysis is at the moment this is evidence being presented to the judge right at the moment i'm saying move to admit the judge doesn't have any basis of knowing that all these criteria have been satisfied. So
[00:14:51.283] [SPEAKER_01] this is both a requirement to show that the instrument is working properly, and as a sort of precondition for admission of the evidence, the state has to show that you've got those two results within .02 of one another.
[00:15:01.712] [SPEAKER_00] Absolutely. But the point I wanted to stress for prosecutors is that although here the court is saying we didn't do that, right, we didn't have something for the judge to know that those requirements had been met and they were both within .02 of each other, the court does go on to say that the state may prove compliance with these requirements in any proper and acceptable manner. And in fact, goes on to say, testimony simply noting that the test is performed in accordance with the rules of DHHS could have met this requirement. Yet the record is completely devoid of such evidence. So again, no magic words required. I think that's the key point I wanted to stress for some of these prosecutors. We've said this in a number of different contexts. I think the law steers away from magic words and particular incantations even though i know a lot of prosecutors and wisely so you know have these questions sometimes written out i mean i want to make sure i hit every single one of these and i want the jury to know if it's a jury trial i want them to know that every one of these requirements has been met and satisfied but yeah there are no particular magic words for this and the court is saying if it i think if it had just been as broad as asking was the test administered in accordance with the dhhs requirements That would be good enough, but we just didn't have that here, right? We just sort of skipped over that requirement about that they were within 0.02 of each other. And so the court says in the absence of some form of compliance with both requirements of General Statute 20-139.1 , we are constrained to hold that these rulings amounted to prejudicial error. And so, unfortunately, we've got prejudicial error based on the evidence being admitted that he does have this breadth result over 0.08. And so the court has to reverse by that. They say we're bound by precedent. to hold the admission of the breath test result into evidence constituted prejudicial error and entitles the defendant to a new trial. On the DWI? Exactly, exactly.
[00:16:52.375] [SPEAKER_01] Presumably not on the speeding, is
[00:16:53.719] [SPEAKER_00] it? Right, probably the lesser of anybody's concerns, but yes, the DWI unfortunately would require a new trial.
[00:17:00.799] [SPEAKER_01] The third case we've got on for today is State v. Garmin. This is a case decided by the Court of Appeals on December 3rd. In October of 2020, Sergeant Little with Union County Sheriff's Office observed defendant driving, I think had some prior familiarity with this defendant, pulled him over. Turned out defendant did not have a driver's license and Sergeant Little placed him under arrest. Search of defendant's vehicle revealed drugs. It was fentanyl, drug paraphernalia. There was a gun, ammunition. Apparently, there was a backpack, and a lot of the incriminating evidence in this case was found inside of the backpack, which was found inside the vehicle. Defendant was convicted of trafficking in opioids by possession, trafficking in opioids by transportation, possession of drug paraphernalia, and keeping and maintaining a vehicle for the purpose of selling or keeping controlled substances. Defendant pled guilty to habitual felon status. On appeal, defendant raised basically two challenges. One, dealing with the sufficiency of the evidence of keeping and maintaining a vehicle. And secondly, he challenged the indictment for his habitual felon status. Addressing first the sufficiency of the evidence of keeping and maintaining a vehicle, In order to establish the defendant's guilt of that charge, the state has to basically establish five different elements. The state has to show that the defendant, one, knowingly, two, kept or maintained, three, a vehicle, four, which was used for the keeping or selling five of controlled substances. The defendant really challenged only elements two and four, whether he kept or maintained a vehicle and whether that vehicle was used for the keeping or selling of controlled substances. With regard to whether the defendant kept or maintained the vehicle, the Court of Appeals recited the proposition of whether a vehicle is kept or maintained is determined by a totality of the circumstances, including a consideration of factors like the occupants of the vehicle, the extent of the defendant's use of the vehicle, who has title and ownership of the vehicle, and whether the defendant is making contributions to payments on the vehicle. Here, there was sufficient evidence that the defendant kept the vehicle, and that was established by items that the police actually found inside the car. They found a hotel receipt with the defendant's name on it. They found mail addressed to the defendant. There was a social security card. All of that tended to show that the defendant controlled the vehicle for longer than he was observed driving it by the police officer. So with regard to the defendant's challenge to that element, the Court of Appeals rejected that argument. With regard to element four, for purposes of keeping or selling controlled substances, the Court of Appeals recited the proposition that merely possessing or transporting drugs inside a vehicle is not enough to show that the defendant kept or maintained the vehicle for the purpose of this keeping or selling controlled substances. The evidence must show that the vehicle was used for storing drugs. Factors to consider include the amount of drugs found, their packaging, whether the drugs were hidden in the vehicle, and that becomes kind of a crucial factor here. The presence of cash, the presence of weapons, and other implements of the drug trade. Here, the evidence in the car, including the book bag and the contents of the book bag, that was the digital scale. There's a marijuana grinder, suspected drugs, including fentanyl, and I think there was also suspected marijuana. supported the conclusion that the vehicle was used for the keeping or selling of drugs. And on that point, whether the evidence was sufficient to satisfy element four, there was a fairly substantial dissent from Judge Hampson, who felt like he distinguished cases where drugs were found hidden in a vehicle, saying the extent of the hiding the drugs here was that they were found in a book bag. And he found a difficult time distinguishing that from drugs maybe found in the defendant's pocket or on his person and saying, if it was just kept in a bag that was also in the vehicle, does that somehow transform the vehicle into one where the vehicle itself is implicated in this transportation or possession of drugs? Suffice to say, the Court of Appeals majority found that element satisfied here, so rejected the defendant's challenge to the sufficiency of the evidence to show that he was guilty of keeping or maintaining a vehicle for the purpose of selling controlled substance
[00:20:54.940] [SPEAKER_00] And, you know, Joe, I think that's often going to be true in these cases like this. It's rarely just going to be so simple and so clear cut. I mean, even back on that second element about keeping or maintaining the vehicle itself. You know, the court sort of walks through distinguishing some different cases. You know, they sort of compare it to state versus Weldy, for example, where just driving the car for a few minutes and that's it. Well, that's not going to be enough. And then they contrast that. with that state versus Hudson case where it's way more clear, been in possession of this vehicle for days and, you know, clear indicators. And I just thought that was interesting. They say that this case falls somewhere in between Weldy and Hudson. And I think that's going to be the reality most of the time for prosecutors is it may not be crystal clear. And I think cases like this are a good example. We just we got to hunt for those details. You know, we got to use common sense and advocacy and figure out why it's a little more towards this instead of a little more towards that.
[00:21:46.612] [SPEAKER_01] That's what I found particularly interesting about this charge, Sean, is keeping and maintaining a vehicle for the purpose of keeping or selling controlled substances. There has to be sufficient evidence to implicate not just that the defendant had possession of the drugs or was transporting the drugs, but actually that the vehicle itself, the car was used for this particular purpose. The car was being kind of implicated in this offense. And like you said, the Court of Appeals here walks through a number of those cases that say, look, just seeing the defendant driving the vehicle for a few minutes implies isn't sufficient to implicate the vehicle in this drug trafficking trade. Even the fact that the defendant had drugs or was possessing drugs at the time, there has to be something more that ties the vehicle into that criminal conduct. But this case does a good job of kind of parsing a lot of those cases, dealing with those principles, and ultimately concludes that the evidence here was sufficient to show that the defendant was keeping or maintaining a vehicle for the purpose of keeping or selling controlled substances.
[00:22:38.823] [SPEAKER_00] So, Joe, that's one part of state versus Garmin. But then we also have this sort of interesting habitual felon issue.
[00:22:43.709] [SPEAKER_01] Right. And this is sort of procedurally interesting as well as substantively interesting. The defendant had pled guilty to habitual felon status and then on appeal filed a motion for appropriate relief directly with the Court of Appeals, challenging the jurisdiction of the trial court over that habitual felon indictment. And the basis of that challenge was that the habitual felon indictment Actually, the return of the habitual felon indictment actually preceded the offense conduct that the state had sought to habitualize here. Now you and I have talked a little bit about a recent case called Singleton, where the North Carolina Supreme Court has sort of thrown some of those old indictment rules into question. This indictment rules is a little peculiar because it doesn't have to do with the content of the indictment so much as the timing. And the rule for habitual felon indictments has been that the state is not allowed to obtain a habitual felon indictment before the substantive offense has been committed and just kind of keep it in their back pocket until the defendant commits this new offense and say, aha, we also have you for habitual felon indictment. The habitual felon indictment has to be either coterminous or subsequent to the offense conduct that the state seeks to habitualize. That's a case called State v. Ross. And what had happened here, there was a State v. Ross problem. The defendant was indicted for habitual felon in January of 2020, but the substantive felony wasn't committed until October of 2020. So you had a situation where the Court of Appeals says this habitual felon indictment that's supposed to be ancillary wasn't really ancillary to any substantive charge that was in existence at the time the habitual felon indictment was returned. So it found itself compelled by precedent to say the trial court lacked jurisdiction over the habitual felon indictment and sent it back for re-sentencing. There was, however, a paragraph in the Court of Appeals opinion where they sort of invited our Supreme Court to reconsider this rule. Now, there isn't any explicit mention of Singleton, but there is this suggestion in the Court of Appeals opinion that maybe this is worth a second look, because it does seem just sort of a procedural rule that can trip up the state in a situation like this where all the problem, there's no problem of notice, there's no problem of the sufficiency of the allegations. Like I said, it's just a timing problem that the state had gotten the habitual felon indictment before the substantive offense was committed.
[00:24:56.084] [SPEAKER_00] We'll have to wait and see if the Supreme Court accepts that invitation to look at this. But, you know, we have had some other habitual felon cases over the years that seem to signal, I don't know, a little bit of a loosening up of those rules. I'm thinking of that State v. Hodge case from a few years ago, you know, where there was this habitual... Well, was there even a habitual felon indictment? That's sort of the issue. If folks don't recall, that State v. Hodge, you know, finished the substantive portion of the trial about to move into the habitual felon, realized the grand jury had actually marked it as not a true bill. So... call timeout, go back to the grand jury, get the habitual felon, then come back. I think it's a couple of months later that we do the second part of the same trial. And, you know, the Court of Appeals seemed to struggle with that a little bit. I think they said it's a sort of an unusual or an extreme result given the offense conduct. But ultimately said in terms of this issue, right, in terms of the timing, in terms of attachment of the habitual felon, it all worked out. So I mean, not a parallel factual situation, but just perhaps a signal of a tendency or maybe a desire to see some loosening up of those strict attachment rules, given where we are in some other areas.
[00:25:59.534] [SPEAKER_01] Absolutely. I mean, even pre-Singleton, the rules for habitual felon indictments were a little looser than those really strict common law requirements for substantive felony indictments, right? The rule was that so long as habitual felon indictment gives the defendant notice that he's being prosecuted as a recidivist, it doesn't actually have to comply with every single one of the details in the statute saying habitual felon indictment has to allege each of the prior offenses, the date, and the county and what the offense was and so forth and so on. So this suggestion kind of after Singleton, where the more strict rules of indictments have been loosened up, maybe the Supreme Court will take that up and reconsider this rule from State v. Ross. Like I said, you can't just kind of keep a habitual felon indictment in your back pocket hanging over the defendant's head waiting for him to commit a new offense.
[00:26:43.679] [SPEAKER_00] Joe, I think our time for this episode is winding down. But speaking of the Supreme Court looking at some cases on review, I just wanted to flag one that was not on our agenda for today, but the State v. Wilkins case. We did get another Supreme Court opinion that came down around the same time here in December. Just wanted to briefly mention that for the listeners. This was a case out of Caswell County, and it dealt with the question of the defendant essentially waiving a motion to have his capacity evaluated. And it was sort of an interesting timing. He's arrested initially back in February, February 11th of 2018, and then based on some incidents there's an altercation at the jail, some threats being made, some sort of unusual conduct going on. And so on March 15th of 2018, a motion to have his capacity evaluated is granted by the court. But he then, before that happens, postponed and gets out of custody. And so there's follow-up court hearings that are going on, a plea hearing, a second plea hearing, ultimately a trial in July of 2021. And throughout all of this, It just never happens that he actually gets sent to have this capacity evaluation and then have a hearing held on it. And so now after his conviction on appeal, he's arguing that this is error, right? I mean, we don't even know that I had capacity to proceed for everything that went forward. And it's an interesting opinion from the North Carolina Supreme Court where they say that argument was waived. I mean, essentially, precisely because this went on for three years and we had these hearings and he had colloquies with the court and there were no indicators to show that any substantial grounds to believe that his capacity really was in question subsequent, I would guess, to whatever initially prompted that motion and order to be granted to begin with. But the Supreme Court says, yes, statutorily, this can be waived. And it was in this case waived by the conduct of everything that happened in those intervening three years. Justice Earle's dissents, and of course, feels like that that was improper, that this was just a straight up violation of the court order and that We don't have the information we need to know whether he really had the capacity to proceed or not. But the majority here is essentially saying that, statutorily, that could be waived, and here it was, by everything that happened in the intervening three years. Now, they distinguish that. They talk about a case called Sides, and they distinguish this statutory right to capacity to proceed from a constitutional right to capacity to proceed. And they point out the constitutional right to a competency hearing cannot be waived. But for the constitutional right to apply, there must be substantial evidence of defendants' incompetency. And they're not seeing that here. So this is one that I don't believe I had seen before. Just wanted to make sure we flag that for any of our listeners. Certainly not encouraging anybody to just ignore an order to have a person's capacity evaluated. Obviously, in most circumstances, if it's an issue, we're going to have them evaluated and we'll have a hearing and we'll make a proper determination on it. But in a sort of unusual set of facts like this, where the intervening conduct for three years indicated that apparently it was not the issue that we thought it might be, statutorily, they were willing to find that that had been waived. For anybody who's got something like that that maybe comes up in one of their cases, Wilkins is certainly an interesting one to look at. There was one other Supreme Court decision that we had in December dealing with criminal law. And Joe, I think maybe we'll touch on that in the next episode.
[00:30:00.928] [SPEAKER_01] Sounds good. That's all for today, John. In this episode, we discussed State v. Clark, which is the first application of Smith v. Arizona by a North Carolina appellate court. State v. Vaughn, regarding the foundation for a breath test, and State v. Garman, regarding the jurisdiction for habitual felon indictment. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holst 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.
[00:30:49.210] [SPEAKER_00] And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g. Thank you, John. That would be the showing for the state. Thank you, Joe. Hope it helped.