Episode 8: Reel, Carwile, and Stollings

[00:00:05.870] [SPEAKER_01] The odor of marijuana wafting out when defendant opened the front door suggested possible drug trafficking by sale rather than simple possession. So said the North Carolina Court of Appeals in State v. Real, where it concluded that the possible destruction of evidence constituted exigent circumstances justifying a warrantless entry into the defendant's home. We'll be discussing that case today, as well as a few others decided this past December. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, the defendant in State v. Real challenged the officer's use of the so-called knock-and-talk procedure. Tell us what that means and kind of what's at stake here.
[00:00:56.862] [SPEAKER_00] Sure. So this is one of the cases that was decided on December 17th of 2024, a case out of Guilford County. It first began back in July of 2020. The High Point Police Department received information a couple of tips about suspected drug and narcotic activity at a particular address, an anonymous tip as well, sent in through Crime Stoppers. And so one of the detectives with that department goes out to that address to begin checking on it. When they arrive, they decide to conduct what they call a knock and talk at this residence. This is in August of 2020. They don't park right in the driveway and they are in an unmarked police car. But they see no cars, no apparent activity, so they drive around and basically park on another road that runs right along the side of the home. And when they do that, they then see this gray Acura car pulling into the driveway of the home. The detective gets out of his car, starts walking up towards a female visitor who has just gotten out of the Acura car and is then walking up to the front door. The detective speaks to that person, but she doesn't answer him. He basically follows the visitor up to the front door of the home. She knocks and the defendant, ultimately the defendant in the case, answers the door. The officer, the detective rather, sort of catches the storm door and the visitor walks into the house. And as she's going in, as this door is cracked open, there is this sort of odor of marijuana that comes wafting out of the home. But the defendant then basically shuts the door. The state would say sort of slams the door shut after the visitor comes inside. And the detective says he could tell that the door was then being braced to prevent entry of anybody else coming into the home. That combination of circumstances makes him think, yes, there are drugs in this house, and yes, they might be destroyed if he doesn't immediately gain entry. So the detective would say he identifies himself as a law enforcement officer, tries to, as he says, sort of shoulder or force the door open. isn't able to do that but another officer is able to kick it open so then they get into the home they discover a bag of marijuana a bag of pills a digital scale all that out in plain view and so the defendant ultimately uh on his motion to suppress being denied he reserves his right to appeal and pleads guilty under an agreement with the state to a number of charges trafficking fentanyl, as well as one count each of possession with intent to sell or deliver fentanyl and MDMA, possession of a firearm by a felon. And so these are the issues on appeal in a pretty high stakes case for the defendant. He gets a sentence of 225 to 282 months and a fine of $500,000. And the issue here with the... issue on appeal for the defendant is basically disagreeing initially with some of the judge's findings and saying that, you know, the video doesn't support the state's versions of facts. The court of appeals runs through some of these initially challenged findings of fact from the order. They note some kind of minor discrepancies on some of these, but generally call them a fair characterization. You know, there's some dispute about, I mean, is the officer really wearing a uniform that identifies him as police on the front? Well, no, but there's a badge and it says police on the armband or on the back, you know, some minor discrepancies or sort of the area where they parked and so forth, you know, the order says that they were parked in the same area as the driveway. And it's not exactly the same area as the driveway. It's the street right around it. But going through some of what- Just to clarify, John,
[00:04:14.819] [SPEAKER_01] this was the defendant challenging the constitutionality of this search, right? So the factual findings were coming out of the motion to suppress hearing?
[00:04:21.869] [SPEAKER_00] Exactly. So there is a hearing on the motion to suppress. The judge has denied that and he's pled guilty after that motion being denied. And it's now challenging the court's determination of that stuff on appeal. So the court is looking at particularly some of these findings of fact, number 11, number 12, number 21, number 25, looking at those things about where did the findings of fact say that the officers were actually parked or how did they approach? And did the uniform actually identify them as police? And did the defendant really slam the door shut or did he just close the door shut? It's running through those challenge findings of fact. In total, the Court of Appeals says that The evidence and the testimony support the version of those. But the bigger issue here, really, are these challenge conclusions of law. As you said, was this a valid knock-and-talk approach that the officers made up to the House? Based on those facts, was the ultimately resulting search that the officers conducted supported by the findings of fact as the court found them? And the Court of Appeals here says, yes, it was, and finds that the defendant's contentions are, in their words, without merits.
[00:05:22.225] [SPEAKER_01] Because there have been some cases holding that a pretextual knock and talk, like just an investigation to walk through the defendant's yard, might not support the ultimate admission of this evidence. Is that right?
[00:05:33.065] [SPEAKER_00] That's exactly right. And, you know, that's sort of the first step in resolving this is looking at this issue of what is a knock and talk and what's allowed or not. And these are entirely my words and not the court. But I think essentially the way the law shakes out is that you are allowed as an officer to approach the house like a salesman would. You just can't approach the house like an assassin would. In other words, when an officer walks up to the front door of the home and knocks on the door and says, may I speak with you for a moment? There's this implied license that any person would have to walk up to the front door and knock and ask if you want to talk.
[00:06:04.783] [SPEAKER_01] I think some of the defensive home cases talk about Girl Scouts and trick-or-treaters, right? The kind of license that would allow children to come up to the front door and kind of knock on the door
[00:06:12.961] [SPEAKER_00] there. Exactly. And we can distinguish that from some other cases like State v. Falls that we had back in 2020, which is one that the Court of Appeals references here, when officers are not in uniform. and they're coming late at night, and they're slipping in through the side yard, and they're going around to a back door. Again, my word's not the court, but that approaching like an assassin, not like a salesman, then we're going to have a problem. And you're right, Joe, they talk about this pretext term, that when it's not just a genuine knock and talk, walk up to the front door, but that we're using that term as sort of a pretext. And I understand that terminology. I think maybe it's a little easier to understand it as looking at the manner of the approach that's being made to the home. And so here, the majority is finding that falls, in their words, is helpful, but we find the facts of this case easily distinguishable from that matter. And so then they're going back to those challenge findings of fact. Yes, they are parked on a side road, but that side road is not fundamentally different than what a driveway would have been for the home. And yes, they are wearing a somewhat non-traditional uniform, you know, more of a, as they call it, BDUs and not just a normal officer uniform, but BDUs. They're also coming during the middle of the day. What they're wearing does indicate that they're law enforcement officers. They're walking up to the front door. They're literally following right behind some other visitor who just got out of their car and walked up to the front door. And so the majority goes through and says that all of that, in their words, Hilliard did not exceed the scope of a knock and talk and transform his presence at defendant's front door into a search for Fourth Amendment purposes. But even if we get to that point, you know, then there's this other question of now, do we have probable cause? that there's going to be evidence of a crime inside that home, and do we have exigent circumstances to support the officers? Because again, without a warrant, they're basically then forcing the door open of the home. They talk about that odor of marijuana that came wafting out when the visitor opened the door. And they say, based on that, yes, there would be, that did establish probable cause for the search that they wanted to carry out. You know, Joe, you flagged this in the introduction. It's not just probable cause of, you know, simple misdemeanor possession of marijuana, because as the court points out, the whole reason we're here is that we've gotten two independent tips about drug sale activity that may be going on. And so, you know, it's not just the simple possession of it, but the idea that under the totality of the circumstances with marijuana, two reports of drug sales being made, and then the smell of marijuana, admitting the visitor and then closing the door, bracing it to prevent what they evidently expect an entry to be attempted, that all of that, they said it was objectively reasonable to conclude that an officer in Hilliard's position would have worried the defendant would destroy this evidence. And so there was probable cause to believe that these felony sales of drugs were going on inside the home, not just simple possession. And there were exigent circumstances to support that subsequent entry into the home, even without the officers going out to get a warrant. Now, that's the majority opinion that we've been talking about. There is a dissent here. There is. Judge Thompson dissents. And Joe, I think that's very interesting because, you know, as I said, a lot of this is captured on video, right? I mean, that's sort of what a lot of those challenge findings of fact were pointing back to. Is he sure the officer says this, but look at the video. We think it's a little bit different. You know, they're coming over from the side. He's not just following the visitor. It's more like he's sort of grabbing the door and sneaking up almost behind the visitor. And when you read Judge Thompson's recitation of the facts, I mean, again, the majority in the dissent are talking about the very same testimony, the very same incident, looking at the same video, and yet characterizing it essentially as one sees a salesman, one sees an assassin, you might say. Again, those are totally my words, not the court. But I just think that's an interesting point for prosecutors, even in a case that is on video. right, this role that advocacy or characterization of the facts has. We need to make sure we're explaining to the court and giving the judge what they need to put into their order on denying that motion to suppress to explain why this was a proper and lawful implied license to approach the home. This was not parking around the side of the house, skulking through the side yard, sneaking up on the visitor, grabbing grabbing the door, slipping in. And yet, you can't disagree with the dissent's characterization. There are things you could point to in the video to see it that way. It comes down to how we're going to interpret, I guess you might say, what it is that we're seeing. And fortunately for the state in this case, the majority felt like this was Similar to the cases, more similar to those salesman type cases, rather than the violation falls type cases where they feel like it's gone too far.
[00:10:41.476] [SPEAKER_01] So the upshot was no error in the denial of the defendant's motion to suppress. Guilty plea remains
[00:10:47.849] [SPEAKER_00] undisturbed. Exactly. And there was one other case in this batch. I'm not going to spend a lot of time on it, but I just would flag that for prosecutors or others who were listening. In this same set of cases from December 17th, we also had State v. Johnson, which is somewhat similar. That was officers responding to a home based on a call concerned about animals that are being abused or neglected. And officers there were basically walking up the driveway and then from the driveway could already see in the backyard and even through windows of the home that evidence of animals, in fact, being in danger, being neglected and malnourished and so forth. And so, you know, took photos even of that and then used that to go get a search warrant. So similarly, a motion to suppress arguing, you know, this is not salesman territory, right? You know, you're coming up a driveway and then it's only based on what you've then seen that you then get a search warrant to come in the house and find the rest of the evidence and wanted all that suppressed. But along the same lines, the court there said that when the officers saw what they saw, they were in a place that they had a lawful right to be by just sort of walking up this driveway. That as well was distinguished from officers who are cutting through a side yard, coming to a back door, trespassing on the curtilage. Any of those kind of things are putting you into that assassin category we want to stay away from. But this sort of sensible parking on the nearby side street that is apparently used and is no further away than the driveway would have been. uh the walking up to the front door following a visitor that's putting us more back under the salesman side of things and the time of day matters too right absolutely absolutely all those daylight absolutely we're not going to do that at 3 a.m we're not going to be dressed in black we're not going to cut through the shrubbery on the side we're just going to come identify ourselves as law enforcement come at a sensible time walk up to a you know a normal door that any other person would knock on and then we can do that knock and talk and that would be how we avoid having that characterized as a pretext or, you know, an improper manner of engaging in one of these knock and talks.
[00:12:39.455] [SPEAKER_01] Right. I think the second case we had on for today was Stacey Carwile. This is another case from the Court of Appeals interpreting those relatively recent defensive force statutes 14-51.2 and following. In this case, it was September 4th, 2018, around 5 a.m., a man named Christopher Easter approached the defendant's home. It says wearing a mask. There's not really much more detail about what sort of mask he was wearing. Inside of the home was the defendant, a house guest by the name of Joshua Chinow and the defendant's wife. Christopher Easter entered the house and it says struck defendant with a chainsaw that he had picked up on the front porch and with a rock-filled sock. Defendant managed to push Easter out of the house, and then they continued fighting across the yard and got so far. Apparently, there was a used car sales lot on the other side of the yard, and there was surveillance video from that used car sales lot. Easter backed up into the used car dealership with his hands up. Defendant and his wife and his guest, Joshua Chenot, apparently continued to attack Easter, hit him with a trash can, hit him with a rock-filled sock. Somebody dropped a wrench and they began attacking the victim, Easter, with a wrench. There was some evidence that the defendant picked up the victim and beat his head against the pavement. Ultimately, Easter died as a result of that treatment and the defendant was charged with first-degree murder, felony assault, and felony communicating threats. He was convicted by a jury of second-degree murder, misdemeanor assault, misdemeanor communicating threats, and then on appeal argued that the trial court plainly erred in failing to give defensive habitation instruction. different components of that. And then secondly, erred by refusing to give a special instruction, the defendant argued that the trial court should have instructed the jury that the victim would not be justified in using defensive force if he was escaping after the commission of the felony. With regard to the defense of habitation, the defendant argued specifically that the trial court should have instructed the jury that his fear for his life was presumptively reasonable. Remember under those new Castle Doctrine statutes, General Statute 14-51.2, the lawful occupant of a home when using deadly force is presumed to have had a reasonable fear of death or serious bodily harm when the intruder was unlawfully and forcefully entering the home and the occupant knew or had reason to know it. However, that presumption does not apply when the evidence meets one of a list of its four or five different circumstances under that statute. And one of those, 14-51.2c5, is that when the intruder has discontinued all efforts to enter the home unlawfully and forcefully and has exited the home. Those exclusions from the presumption of a reasonable fear were recently examined by the North Carolina Supreme Court in a case called Phillips. that we discussed here. That was a case where the North Carolina Supreme Court held that as a matter of law, there is no excessive force in defense of a home. And then in addition to that, that the only exclusions from that justified use of deadly force are those that are enumerated in the statute. Here, however, in Carwild, the Court of Appeals found that the facts met that exclusion, that the presumption of a reasonable fear does not apply when the intruder has discontinued all efforts to enter the home and has exited the house. In this case, the victim, Easter, had exited the home. The evidence was clear that they were all the way across the yard on the lot of this used car dealership when the homeowner and his wife were attacking Easter. He had discontinued all efforts to enter the home. Hence, the statutory presumption of a reasonable fear was inapplicable in this case, and the defendant wasn't entitled to that particular instruction.
[00:16:10.835] [SPEAKER_00] So, Joe, that's what I'm trying to wrap my head around. You know, we're talking about this as essentially rebutting or taking him out of the Castle Doctrine defense because of the fact that the intruder had now discontinued all efforts to enter the home. So essentially rebutting or applying one of the exceptions. But what I'm struggling to understand is why are we talking about rebutting the Castle Doctrine defense instead of just saying, It simply doesn't apply when you're not in your house. You're now in this used car lot some distance away from the house. Why is it rebutting and not just doesn't apply because you're not home? Well, part of that, if you
[00:16:42.938] [SPEAKER_01] go back to the common law defense of habitation, strictly speaking, the common law defense of habitation was the lawful right to use defensive force to terminate an unlawful entry. And I think from what you're talking about, it would have been clear outside of the home, right, where the boundary of the home is not being protected, clearly that defense doesn't apply. The reason this gets a little complicated is those new statutes, 14-51.2 defines the home to include the curtilage. So it's not quite so clear where the boundary of that defensive force ends, right? It's not at the wall of the house or at the front door, but might extend so far as to the edge of the property where the daily activities of using the property are conducted. So in this case, I think you're right. The evidence was clear that this was actually off the defendant's property into this used car lot next door. It amounts to the same thing, however, right? Does that defense apply or what is one of these exclusions implicated? I think the Court of Appeals chose sort of the the easier path here where that exclusion very clearly applied, that presumption is not going to operate where the intruder has discontinued efforts to enter the home and was no longer in the house. They found that exclusion was clearly implicated here. And so the upshot is defendant was not entitled to this instruction. Kind of the second part of the defendant's challenge was that he argued the trial court should have instructed the jury that a person is not the aggressor while he's defending his home. Remember, the statutory justification for defensive force is not available to one who initially provokes the use of force against himself. And as our Supreme Court has recognized, that's a codification of the old aggressor doctrine that now appears in 14-51.4. The Supreme Court in a case called Hicks had recognized, however, that one can become an aggressor when he continues a fight that his adversary seeks to leave. So it's not only what the court sometimes calls the initial aggressor, that is the person who starts the fight, but a person can become the aggressor if one's opponent, even if the opponent had been the initial aggressor, tries to leave the encounter, gives notice of his intent, say, I'm out, I don't want to fight with you anymore. If the defendant continues to pursue that altercation, continues to attack the victim, that person can become an aggressor. The Court of Appeals here concluded that the defendant, quote, became the aggressor when he continued to pursue Easter after Easter had discontinued his efforts to enter the home. And just like that statutory exclusion, meaning the defendant was not entitled to a presumption of reasonable fear, it found this particular instruction was not applicable where the defendant had made himself the aggressor by pursuing that difficulty beyond the boundary of protecting his house. There was finally an argument that the defendant should have instructed the jury that if the defendant was threatening the use of lawful force, then he could not as a matter of law be guilty of communicating threats. Court of Appeals found that the trial court gave the substance of that instruction when it advised the jury that the state had to prove that the defendant communicated threats without lawful authority. Now, for each one of those arguments, the defendant also argued that he received ineffective assistance of counsel for not sort of seeking this particular instruction. The Court of Appeals, having gone through each one of those and said the defendant was not entitled to that instruction, was able to say also that since the instruction was not warranted, it wasn't ineffective assistance of counsel not specifically to request that instruction. And then finally, there was one final argument here with regard to that special instruction that the defendant had asked for. This apparently was the only argument that was actually preserved for appeal. The defendant argued the trial court should have instructed that the victim would not be justified in using defensive force if escaping after the commission of the felony. And this, again, was picking up on a North Carolina Supreme Court case called McLemore, where they had given some first interpretation of that felony disqualifier that appears in 14-51.4. And the Court of Appeals found that the defendant here was trying to sort of turn McLemore around, where McLemore dealt with a defendant who was seeking acquittal. to avoid the consequences of that exclusion. Here, the defendant was trying to weaponize that exclusion to say the victim was not permitted to use defensive force. The Court of Appeals found no legal justification for that kind of switcheroo and said that instruction was not supported by the case law. In other words, it was not correct in law. And so the trial court did not err by not giving that instruction. And kind of as a bulwark to that holding, it went on to say, in any event, the substance of that instruction was given when the trial court advised the jury on self-defense. The jury rejected the self-defense argument when it found the defendant of second degree murder. And so ultimately, the Court of Appeals found no error in the trial court's failure to give those particular instructions.
[00:21:06.871] [SPEAKER_00] It seems like that's sort of settled by how we settle the prior questions, right? I mean, if we're still in this place and in this moment where he's the one breaking into the home, well, then, of course, he would have no claim to self-defense, right? But if we're now in this separate situation in the parking lot away from the home where he's simply being pursued and the defendant is now the aggressor, well, then he's no longer the person who was engaged in that felony.
[00:21:27.239] [SPEAKER_01] Yeah, yeah, that's right. And I think the takeaway here is, I mean, this is one of those extreme cases. I think it's not surprising to see kind of how the Court of Appeals reached the conclusion here. Obviously, those self-defense, defensive force statutes expanded the defensive habitation protection, gave a little more teeth to self-defense in enacting those statutory protections. But this case represents kind of that beyond the pale situation. circumstance where, sure, you have a right to defend the home, but if you've successfully prevented somebody from intruding, you're not allowed to chase them across the yard and beat them to death in a commercial establishment next door. That's ultimately what this case holds.
[00:22:04.155] [SPEAKER_00] Joe, this was a challenging set to choose three cases to really focus on. There were a lot of opinions that came out on this same day, on December 17th. I think the next one we had flagged in particular was State v. Stallings, and then, time permitting, we may just try to mention a few of the others that are sort of worth taking a look at if any of our listeners have time. But the Stallings case in particular is one out of Rowan County. It arose back in March 7th of 2020. Officers with the Rowan County Sheriff's Office are doing what they call a special project around a fish arcade. I assume most people know what we're talking about, but you know, these establishments where they have these video games that are sort of gambling. operations and the detectives are working that location, running the license plate of a black SUV that they see parked there. They identify that as belonging to a person they think is the spouse or girlfriend of the ultimately this defendant, who detectives are familiar with from some past information about drug activity. So they follow that car when it leaves the fish arcade, as it's called. They see it briefly go into a gas station parking lot. meets up evidently with a small pickup truck. They can't see exactly what's going on, but they're both just there for a short period of time. See them pull into this Applebee's parking lot just about a half mile or so away, remain there for a very short period of time and then leave. The officers, they will testify later in court that that's something that indicated to them possible drug sales activity. But the basis for the stop that they engage in is a simple speeding stop for going five miles over the speed limit. While they are engaged in that traffic stop, they call in for a canine sniff. The detectives doing the stop are informed by the canine officer that the dog did alert for the presence of drugs near the gas lid on the driver's side. And so based on that, the defendant is brought out of the car. He is searched by the detectives and in his pocket they discover some methamphetamine. They also do a search of the vehicle. One of the detectives finds a gun in the car but isn't wearing a body cam, so basically just tells another detective where it is so that that detective can then go seize it and have the location actually recorded. So the defendant is indicted for drug paraphernalia, possession with intent to sell or deliver methamphetamine. and carrying a concealed handgun, moved to suppress all evidence in the case as the product of an unlawful search or seizure. That motion is denied. Defendant enters into a plea agreement, reserving his right to appeal the denial of that motion. And that's what is before the Court of Appeals. And the problem that the Court of Appeals runs into is that going through the judge's findings of fact and ultimately legal conclusions in order, it's just not entirely clear what what it is that the trial judge was finding the facts to be. And they talk about a number of different ones. They look at finding a fact 19 and 26 and 27, a couple of others. But to give you one example, the first one, finding a fact 19, that's where the detective's testimony is that he saw this driving activity that he describes, the parking lots, the time of day, traveling to some other place with another vehicle, a short little period of time meet up, and the vehicles following each other somewhere else. And the detective, in finding of fact 19, the judge is recording that it says that from Detective Gordy's training and experience, he testified that from this activity, he was able to form probable cause of drug activity. That's the judge's finding of fact 19. But then the Court of Appeals is pointing out It's not entirely clear to us what that means. You know, are you simply reciting the testimony or are you saying that's why the detective thought that he had probable cause? Or as the judge, are you saying that is what in fact happened and that does establish probable cause? It's just it's not entirely clear where we've landed on this finding of fact or how the court is resolving these discrepancies or particular versions of facts. that came up at the testimony.
[00:25:52.296] [SPEAKER_01] And John, I think there's a number of cases that have said it's not sufficient for a trial court in writing an order denying a motion to suppress just to recite what the witness has testified. Witness A said this, Witness B said that. I mean, there actually has to be a resolution of those factual discrepancies in order for this to be a valid order.
[00:26:07.853] [SPEAKER_00] There does. Yeah, absolutely. And Joe, I think you're talking about where they reference specifically, for example, to State v. Jordan, a recent case from the North Carolina Supreme Court where they say, we cannot choose between these competing inferences. And they go on to say, our Supreme Court has articulated the problem in the context of orally made findings. Just a quick quote. They say, when announcing an oral ruling, trial courts often will describe the testimony and evidence received at the hearing. The court might say, the officer testified that the door was open. Is this a finding that the officer's testimony is credible and thus a finding that the door was indeed open? On a cold appellate record, it can be hard to tell. And that's exactly what they're struggling with here. What did this judge find about the driving? And I won't go through all of them, but there's sort of similar results that come up with some of the other findings of fact like, the search of the defendant when they get him out of the car. So it's not clear, and there's some disputed testimony. Is this just a Terry frisk, and then we're finding what's in the pocket? Or is this a full-blown search of the defendant outside of the car? And then the canine sniff. There's some disputes at this hearing about, did the dog really alert? And did that actually... happen in the place and in the way that's being described to give the probable cause to then search the vehicle. Similarly, when you look at the findings of fact in the order, we just kind of have this recitation of testimony, but we're just sort of being presented with these competing narratives about what different witnesses had to say about it. Not entirely clear that the judge is making a finding of fact that this is the fact You said
[00:27:39.549] [SPEAKER_01] competing narratives. The challenge here is to kind of use the evidence that has been presented to create a coherent narrative saying what actually happened in the interaction between the defendant and the officers, right? Because it's only after we've created that coherent narrative can we kind of draw legal conclusions based on what actually occurred.
[00:27:57.253] [SPEAKER_00] That's exactly right. And those are the legal conclusions that the appellate court is trying to review. I mean, do we have probable cause to search this vehicle, right? Well, that depends on whether we really did or didn't have this good canine alert on the back of the car. And then the drugs found in the pocket. I mean, first of all, what are we dealing with? I mean, is this a Terry Frisk or is this a search of the person outside of the car away from the dog sniff? Because then we've got a whole different legal question and they just, they can't resolve that. And so ultimately based on the way that this is ordered, the court says, They have no choice but to vacate the judgment against the defendant, set aside the plea agreement in its entirety, remanding it to the trial court for new proceedings on the defendant's motion to suppress, including for findings of fact, resolving disputes in the evidence and conclusions of law, and then, if necessary, to proceed to trial. And then they say, you know, a different judge could do that if the original judge who conducted the hearing is not available.
[00:28:48.317] [SPEAKER_01] So what's the prosecutor to do? I mean, having got this on remand, the Court of Appeals says send it back for further proceedings, possibly a trial. Does the prosecutor have to conduct a new suppression hearing?
[00:28:58.116] [SPEAKER_00] Well, Joe, you're right. The Pellet Court's order just says we remand to the trial court for new proceedings on defendant's motion to suppress. including for findings of fact, resolving disputes in the evidence and conclusions of law, and if necessary to proceed to trial. So, I mean, I think certainly the safest course would be to hold a new hearing on it. But I mean, since really the issue here is just that the judge's order with the findings of fact didn't resolve these discrepancies, we do have the testimony. I mean, that's already been elicited. We've already got the video offered into evidence. So, I mean, it may be possible to just proceed with perhaps arguments before the court, relying on the testimony and evidence already been presented and get a new order from the judge. But I think if the state wanted to approach this a different way or had additional evidence they wanted to offer, I think the court has opened up that door by saying we're remanding for new proceedings.
[00:29:45.692] [SPEAKER_01] I think that's right. And then the upshot kind of going forward, I don't know how often it is that prosecutors are asked to draft this kind of order or review an order that a trial court has already written, but you want to be careful of that prohibition against just a recitation of what the witnesses have said. I mean, the way we were talking about it before, there has to be kind of in the order, a coherent narrative of what happened, regardless of whether there was a discrepancy in the evidence. Was there a stop? Was there a dog alert on the car? Was this search pursuant to the officer's search incident to arrest or just a frisk after he'd gotten the defendant out after the car. There have to be these determinations made in the order.
[00:30:22.080] [SPEAKER_00] Absolutely. And I know for prosecutors listening, I know a lot of times that depends on where you are or it depends on the particular judge you're in front of. They may ask the state to draft a proposed order if the state is prevailing on the motion to suppress, or the judge may let you review their proposed or draft version of the order. And if either of those things happen, absolutely. You know, let's double check it and make sure it's written the way that it needs to be written, where we're actually making the findings that need to be made. If you just get it from the judge and it's a fait accompli and it's already been filed, there's nothing you can do about that. But if nothing else, we could certainly urge the judge to, you know, make a finding that this is what happened and this does establish probable cause, just so there's some clarity for the court of appeals to look at it and hopefully agree that the trial judge decided it the same way. Joe, I know we're getting close to the end of our time. I said a moment ago there were so many other interesting cases we could have talked about. Just mention a few of those if folks want to go take a look at least at the School of Government summary of them that is posted on the criminal law blog or go read the opinions yourselves. But a few that stood out for me, State v. Bracey, a case out of Brunswick County where the court found that circumstantial evidence like fleeing from the police or the fact that the gun was was stored in a hidden compartment inside of a vehicle was sufficient to establish that the defendant knew the gun was stolen not just a constructive possession but actually knowledge of the gun being stolen that's an interesting case also state versus linger felt out of mcdowell county a decision where the court applied this modified categorical approach to decide that Our North Carolina offense of sexual activity by a substitute parent is a Tier 2 offense under this federal framework, not a Tier 1 offense, and so affirmed the trial court's denial of his petition to terminate his sex offender registration, even though this offense differs slightly from the comparable federal offense regarding that mental state requirement. So for prosecutors in that area, certainly an interesting one to look at. And then finally, State v. Moody, which I know some of you may not have noticed in the initial published list of opinions on December 17th. It was issued as unpublished, but the court granted the Attorney General's motion to have it changed to published status just on December 30th of 2024. This was one where the defendant was convicted of DWI and felony death by vehicle resulting from a crash. and the state's evidence included a blood test showing a certain amount of THC in the defendant's blood, the defendant was arguing on appeal that there was no way to correlate that number to any particular level of impairment. But the Court of Appeals in this case extended the logic we've seen in cases like State v. Rich involving alcohol to apply that in the same way to this case involving THC. In essence, that no, just evidence of an impairing substance in a person's body all by itself is not going to be enough to establish that that person was impaired. But combined with evidence of bad driving, which was also present in this case, that is enough. And so I know a lot of prosecutors will be glad to have some clear published authority involving THC and sort of confirming that evidence. common sense application of the existing law that we already had for alcohol. And so, Joe, those are the ones that jumped out at me from the Court of Appeals. But I know there was also one other Supreme Court opinion from December that we haven't talked
[00:33:24.859] [SPEAKER_01] about. One Supreme Court case on December 13th called State v. Gillard. This was a case out of Wake County. The defendant was convicted of two counts of first degree murder and sentenced to death. That was arising out of a double homicide that occurred around 3 a.m. on December 2nd, 2016. Defendant contacted the female victim, a woman named Holland, seeking sexual services. Holland replied with her price and address at a Raleigh hotel. Defendant arrived around 4.30 a.m. with an accomplice by the name of Hill. Garvey, whom the Supreme Court called Holland's protector, tries to enter the hotel room. Hill enters the hallway and shot Garvey. Defendant exits the hotel room and fires two shots into the room. Garvey and Holland are dead when the officers arrive. It turns out, in subsequent investigation, Holland was 12 weeks pregnant at the time. Defendant was indicted on two counts of first-degree murder, convicted and ultimately sentenced to death. I'm not going to go through this whole opinion. It's a very long Supreme Court opinion, split about half and half between the majority opinion and a dissent. The dissent deals only with whether the death penalty was properly imposed in this case. Really, a lot of the issues, and there's a number of issues that arise here, but a lot of them revolve around the admission at trial of 404B evidence, evidence regarding prior activity by this defendant and his accomplice Hill. They apparently had a common scheme or plan to set up an assignation with a prostitute at a low budget hotel, would then go in, rape the victim, rob the victim, and commit sexual assault. Evidence of those other prior bad acts was admitted at trial, and a lot of the challenge on appeal was whether that evidence properly should have come in. The Supreme Court rejected all of those challenges, challenges to also the admission of photographs. I think there was a challenge to jury instructions. There's a lot going on in this case, like I said, long case, but for any prosecutors dealing with a 404B issue, this has a lot of those principles that come up again and again. Remember, that's a rule that generally is permissive to the introduction of evidence, prohibiting only that evidence that is introduced solely for the purpose of showing a propensity to commit a bad act. The Supreme Court found that the evidence here was introduced for a proper purpose, that it wasn't unduly prejudicial, and ultimately upheld the convictions and upheld the death penalty.
[00:35:30.583] [SPEAKER_00] Yeah, I know there's a limited number of prosecutors that are dealing with death penalty cases on a regular basis. Those are certainly few and far between in North Carolina, but 404B is something all of us see in all of our cases on a pretty regular basis. So that's certainly a good one to look at, particularly for that similarity question. Right, right.
[00:35:47.559] [SPEAKER_01] Well, John, that's all we have for today. In this episode, we discussed State v. Real upholding a warrantless entry of the defendant's home, State v. Carwile dealing with the defensive force instructions, and State v. Stallings regarding the ambiguity and the findings on that motion to suppress, and a few other cases decided by our appellate courts in December. 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'd like for us to cover in our next episode, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's J-H-Y-D-E. at sog.unc.edu.
[00:36:40.385] [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.
[00:37:09.927] [UNKNOWN] Thank you.