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N.C. Conference of Superior Court Judges Criminal Law Update & Review. Jessica Smith Institute of Government School of Government, UNC-Chapel Hill October 2003. © 2003. Jury Argument: Abusive Comments 404(b): There are limits Probation Prayer for Judgment Continued. © 2003.

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n c conference of superior court judges criminal law update review
N.C. Conference of Superior Court JudgesCriminal Law Update & Review

Jessica Smith

Institute of Government

School of Government, UNC-Chapel Hill

October 2003

© 2003

slide2

Jury Argument: Abusive Comments

  • 404(b): There are limits
  • Probation
  • Prayer for Judgment Continued

© 2003

slide4

Jury Argument

  • State v. Jones, 355 N.C. 117 (2002)
  • New capital sentencing hearing b/c trial court failed to
    • sustain objection to comparisons to Columbine school shooting & the Oklahoma City bombing &
    • (2) intervene ex mero motu when State engaged in name calling & personal insults

© 2003

slide5

Jury Argument

  • Court began by revisiting the:
    • limits of proper closings
    • professional & ethical responsibilities of attorneys making such arguments
    • trial judge’s duty in overseeing closing arguments &
    • ramifications for failing to keep arguments in line with existing law

© 2003

slide6

Jury Argument

  • Limits of proper closing argument—G.S. 15A-1230(a):

During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.

© 2003

slide7

Jury Argument

(2) Lawyers’ Professional & Ethical Responsibilities

  • Rule 12 General Rules of Practice for Superior & District Courts:

abusive language/offensive personal references prohibited;

lawyers’ conduct should be characterized by candor & fairness;

counsel should act with dignity & propriety

© 2003

slide8

Jury Argument

  • Preamble to N.C. State Bar Rules of Professional Conduct:

“[a] lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

© 2003

slide9

Jury Argument

  • Professional ConductRule 4.3(e):

a lawyer shall not allude to any matter that he/she does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a W, or state a personal opinion as to the justness of a cause, the credibility of a W, or the guilt or innocence of an accused

© 2003

slide10

Jury Argument

(2) Lawyers’ Professional & Ethical Responsibilities – recap:

Court Rules – R. 12

Rules Prof. Responsibility – preamble & R 4.3(e)

© 2003

slide11

Jury Argument

(3) Trial judge’s Duty & (4) Response to violations

Acknowledges the oft-quoted refrain:

“counsel are given wide latitude in arguments . . . and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence”

© 2003

slide12

Jury Argument

(3) Trial judge’s Duty & (4) Response to violations

Acknowledges the oft-quoted refrain:

“counsel are given wide latitude in arguments . . . and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence”

BUT says: “wide latitude has its limits.”

© 2003

slide13

Jury Argument

  • Judges have two responsibilities:

“diligently ensue that attorneys honor [their] professional obligations”

“take appropriate action against opportunist who purposely venture to violate courtroom protocol”

© 2003

slide14

Jury Argument

  • Remedies may include: requiring counsel to retract portions of argument deemed improper and/or issuing instructions to disregard
  • Court’s responses to violations have ranged from warnings, imposing discipline, & ordering a new trial

© 2003

slide15

Jury Argument

Turning to case before it:

  • Trial court abused discretion by overruling objections to argument linking the tragedies of the Columbine school shooting & Oklahoma City bombing with the tragedy of V’s death.

© 2003

slide16

Jury Argument

  • References improper for at least 3 reasons:
    • Referred to events/circumstances outside of the record
    • By implication, urged jurors to compare D’s acts with the infamous acts of others; &
    • Attempted to lead jurors away from the evidence by appealing to sense of passion & prejudice

© 2003

slide17

Jury Argument

  • Impact of the statements was “too grave to be easily removed from the jury’s consciousness, even if the trial court had attempted do so with instructions”

© 2003

slide18

Jury Argument

  • Also error to fail to intervene ex mero motu & stop the prosecutor’s name calling and/or personal insults

© 2003

slide19

Jury Argument

  • Also error to fail to intervene ex mero motu & stop the prosecutor’s name calling and/or personal insults

© 2003

slide20

Jury Argument

Standards of review

© 2003

slide21

Jury Argument

Standards of review

When no objection is made: whether remarks were so grossly improper that the trial judge committed reversible error by failing to intervene on its own motion to preclude similar remarks and/or instruct jury to disregard.

© 2003

slide22

Jury Argument

Put another way:

“only extreme impropriety” will compel a holding that the trial judge erred by failing to intervene on its own motion. State v. Braxton, 352 N.C. 158, 200 (2000).

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slide23

Jury Argument

“gross impropriety”

“extreme impropriety”

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slide24

Jury Argument

Standards of review

When objection is made: abuse of discretion.

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slide25

Jury Argument

  • Back to Jones:
  • Error to fail to intervene ex mero motu & stop the prosecutor’s name calling and/or personal insults

© 2003

slide26

Jury Argument

  • Prosecutor said: “You got this quitter, this loser, this worthless piece of—who’s mean. . . . He’s as mean as they come. He’s lower than the dirt on a snake’s belly.”

© 2003

slide27

Jury Argument

  • Repeated “degradations”
  • (1) shifted focus from the jury’s opinion of D’s character & acts to the prosecutor’s opinion, offered as fact in the form of conclusory name-calling, of D’s character and acts; &
  • (2) were purposely intended to deflect jury away from its role as a fact-finder by appealing to passions and/or prejudices.

© 2003

slide28

Jury Argument

And finally,

Impropriety at the guilt-innocence phase, while warranting condemnation & potential sanction, may not be prejudicial where evidence of guilt is uncontested.

At capital sentencing, “the same argument may in many instances prove prejudicial by its tendency to influence the jury’s decision to recommend life imprisonment or death.”

© 2003

slide29

Jury Argument

Watch List

Abusive comments

Biblical references

Historical references/comparisons

Irrelevant comments re: race

Traveling outside the record

Asking jury to put themselves in shoes of V

Opinions

Comment on failure to testify

General deterrent effect of conviction

Lend “ear to community”

And more . . .

© 2003

slide30

Jury Argument

Watch List

Abusive comments

Biblical references

Historical references/comparisons

Irrelevant comments re: race

Traveling outside the record

Asking jury to put themselves in shoes of V

Opinions

Comment on failure to testify

General deterrent effect of conviction

Lend “ear to community”

And more . . .

© 2003

slide31

“[T]he liberty of argument must not degenerate into license, and the trial judge should not permit counsel in his argument to indulge in vulgarities; he should, therefore, refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives, or from making any statements or reflections which have no place in argument but are only calculated to cause prejudice.”

State v. Miller, 271 N.C. 646 (1967) (quotation omitted)

© 2003

slide32

“When the prosecutor becomes abusive, injects his personal views and opinions into the argument before the jury, he violates the rules of fair debate and it becomes the duty of the trial judge to intervene and stop improper argument and to instruct the jury not to consider it.”

State v. Smith, 279 N.C. 163 (1971)

© 2003

slide33

“Jones did not introduce into the parameters of proper closing argument any new requirements, but instead reiterated established principles long articulated by the laws of this state and by this Court’s decisions.”

State v. Walters, 357 N.C. 68 (2003), petition for cert. filed, 8/20/2003.

© 2003

slide35

Name calling

General rule: Rein it in

© 2003

slide36

Name calling

Jones, 355 N.C. 117 (trial court erred by failing to intervene when prosecutor said of D: “quitter,” “loser,” “worthless piece of—who’s mean. . . . He’s as mean as they come. He’s lower than the dirt on a snake’s belly”).

© 2003

slide37

Name calling

State v. Smith, 279 N.C. 163, 165-67 (1971) (new trial; trial judge failed to intervene ex mero motu when prosecutor argued matters of personal belief & characterized D as “lower than the bone belly of a cur dog”).

© 2003

slide38

Animal references

State v. Hamlet, 312 N.C. 162 (1984) (“We do not condone comparisons of criminal defendants to members of the animal kingdom.”)

State v. Brown, 13 N.C. App. 261 (1971) (“we do not approve of a [D] being referred to as an 'animal‘”)

State v. Sanderson, 22 N.C. App. 669 (1974) (argument that “a person with a bad prior criminal record is just like a snake” is not to be condoned)

© 2003

slide39

Animal references

But see

State v. Earnhardt, 307 N.C. 62 (1982) (statement that individuals were "acting like a pack of wolves" was supported by evidence that they were drinking & engaging in violent behavior).

© 2003

slide40

S.O.B.

State v. Davis, 45 N.C. App. 113 (1980) (new trial; prosecutor referred to D as “a mean S.O.B.”; comments were “highly improper, objectionable,” “degrading and disrespectful”)

State v. Frink, -- N.C. App. – (July 1, 2003) (prosecutor made improper but not prejudicial remarks when he implied D was not raised by his mother, suggesting he was a “S.O.B”).

© 2003

slide41

Hitler/Nazis

Walters, 357 N.C. 68 (prosecutor improperly made made references to Hitler, even though thrust of argument was that jury should stand up to evil like Winston Churchill did to Hitler rather than to appease evil like Neville Chamberlin; no prejudice)

Frink, -- N.C. App. – (7/1/03) (prosecutor improperly compared D to Hitler & D’s gang’s writing to Nazi writings; no prejudice)

© 2003

slide42

Hitler/Nazis

“[U]sing Hitler as the basis for [an] example has the inherent potential to inflame and to invoke passion in the jury, particularly when [D] is compared to Hitler in the context of being evil.”

Walters, 357 N.C. at 105.

© 2003

slide43

Hitler/Nazis

But see

State v. Burmeister, 131 N.C. App. 190 (1998) (no error in overruling objection to prosecutor’s Hitler reference; was evidence indicated crimes were committed by neo-Nazi skinhead motivated by the same racial hatred preached by Nazis & that D was enchanted with Nazi Germany)

© 2003

slide44

Hitler/Nazis

But see

State v. Wilson, 338 N.C. 244 (1994) (with limited analysis concluding there was no gross impropriety in comparing D to Hilter)

State v. Basden, 339 N.C. 288 (1994) (no intervention ex mero motu required; reference to D as "just like in Nazi Europe" analogizing D's argument that he was easily led by another to kill to the Nazis who defended their killings by arguing that they were simply following orders).

© 2003

slide45

Hitler/Nazis

But see

State v. Wilson, 338 N.C. 244 (1994) (with limited analysis concluding there was no gross impropriety in comparing D to Hilter)

State v. Basden, 339 N.C. 288 (1994) (no intervention ex mero motu required; reference to D as "just like in Nazi Europe" analogizing D's argument that he was easily led by another to kill to the Nazis who defended their killings by arguing that they were simply following orders).

© 2003

slide48

“The Devil”

State v. Sidden, 347 N.C. 218 (1997) (ex mero motu intervention not required; prosecutor argued: “when you . . . try the devil, you've got to go to hell to get your [Ws]. . . .The [D] over here qualifies in that respect.”)

State v. Willis, 332 N.C.151 (1992) ("when you try the devil, you have to go to hell to find your witnesses" did not characterize D as a devil)

State v. Grooms, 353 N.C. 50 (2000) (intervention ex mero motu not required when prosecutor referred to D as "the prince of darkness;" evidence suggested that D regularly rode his bicycle at night)

© 2003

slide49

“The Devil”

State v. Sidden, 347 N.C. 218 (1997) (ex mero motu intervention not required; prosecutor argued: “when you . . . try the devil, you've got to go to hell to get your [Ws]. . . .The [D] over here qualifies in that respect.”)

State v. Willis, 332 N.C.151 (1992) ("when you try the devil, you have to go to hell to find your witnesses" did not characterize D as a devil)

State v. Grooms, 353 N.C. 50 (2000) (intervention ex mero motu not required when prosecutor referred to D as "the prince of darkness;" evidence suggested that D regularly rode his bicycle at night).

XXX

XXX

© 2003

slide50

Uncomplimentary comments supported by evidence

Hamlet, 312 N.C. 162 (was not improper to argue D “is the baddest on the block” and everybody knows it when evidence showed that D committed the crime to redeem his reputation as a violent man)

State v. Warren, 348 N.C. 80 (1998) (no error to overrule D’s objection to prosecutor’s statement that D was a “coward” when evidence suggested D preyed on weaker Vs)

© 2003

slide51

“Robber,” “Murderer,” etc

Not OK if there is no supporting evidence:

State v. Correll, 229 N.C. 640 (1948) (trial judge properly sustained objection to characterization of D as “a small-time racketeering gangster” when not supported in the record)

State v. Miller, 271 N.C. 646 (1967) (prosecutor committed reversible error, in part, by referring to Ds as habitual storebreakers when no evidence supported statement)

State v. Foster, 2 N.C. App. 109 (1968) (new trial ordered when prosecutor referred to Ds as “professional crooks”) (citing Miller)

© 2003

slide52

“Robber,” “Murderer,” etc.

Can be OK if supported by evidence:

State v. Harris, 338 N.C. 211 (1994) (“cold-blooded murderer” & “doper”)

State v. Jones, 339 N.C. 114 (1994) ("killer“)

State v. Jarrett, 137 N.C. App. 256 (2000) (“crack head”)

© 2003

slide53

“Robber,” “Murderer,” etc.

BUT, has been disapproved even when supported by evidence:

State v. Bowen, 230 N.C. 710 (1949) (disapproving characterization of Ds as “these two thieves” but finding argument did not constitute prejudicial error requiring a new trial)

. . .

© 2003

slide54

“Robber,” “Murderer,” etc.

“Evidently, the Solicitor felt that the State had introduced sufficient evidence to show beyond a reasonable doubt that the defendants were guilty of larceny. Even so, his argument might well have been couched in less objectionable and more dignified language, which no doubt, would have been equally effective.”

Bowen, 230 N.C. 710.

© 2003

slide55

“Liar”

Should not call W a “liar” or assert that W is lying:

State v. Gell, 351 NC 192, 211 (2000)

State v. Sexton, 336 N.C. 321, 363 (1994)

State v. Miller, 271 N.C. 646 (1967)

State v. Nance, -- N.C. App. -- (5/6/03)

© 2003

slide56

“Liar”

Can argue that jury should not believe a W

© 2003

slide57

“Liar”

Can argue that jury should not believe a W

“We contend”

“We submit”

© 2003

slide58

“Liar”

Can argue that jury should not believe a W

State v. Davis, 291 N.C. 1, 12 (1976) (prosecutor submitted D’s credibility to jury when stating: “[We] would argue and contend to you that [D’s] testimony was nothing but the testimony of a pathological liar”)

State v. Bunning, 338 N.C. 483, 489 (1994) (prosecutor did not call D a liar when he asked the jury to conclude D was lying because he had lied about his name & other things)

© 2003

slide59

Comments on Demeanor

Generally OK

State v. Salmon, 140 N.C. App. 567 (2000) (lawyer may urge the jury to observe & consider a D's demeanor during trial; prosecutor properly urged jury to take into account D’s lack of emotion & “cold fish” demeanor)

© 2003

slide60

Comments on Demeanor

Close case?

State v. Flippen, 349 N.C. 264 (1998) (trial court did not abuse discretion in overruling D’s objection when prosecutor characterized D’s demeanor at trial as "sniveling“)

© 2003

slide61

Attacking Expert

State v. Smith, 352 N.C. 531, 560-61 (2000) (prosecutor’s argument using offensive imagery to malign expert’s profession and disparaging expert’s personal motives for testifying and expertise abused rules governing closing argument but did not require intervention ex mero motu)

© 2003

slide62

Attacking Defense Counsel

General rule: Counsel should not make uncomplimentary comments about opposing counsel and “should refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives.” State v. Sanderson, 336 N.C. 1, 10 (1994)

© 2003

slide63

Attacking Defense Counsel

State v. Miller, 271 N.C. 646 (1967) (disapproving of statement that it was “not very pretty” that defense counsel was a prosecutor “until other things tempted him to the place where he now is;” statement was uncomplimentary & unsupported)

State v. Jordan, 149 N.C. App. 838, 843-44 (2002) (new trial; prosecutor compared counsel to Joseph McCarthy, D objected but judge failed to instruct jury to disregard)

State v. Covington, 290 N.C. 313, 328-29 (1976) (disapproving of: “They are supposed to do everything they can to sway your mind from justice . . . and get their clients off if they can”)

State v. Rivera, 350 N.C. 285 (1999) (disapproving of remark that defense counsel "displayed one of the best poker faces” when state’s W that contradicted D’s alibi defense)

© 2003

slide64

Attacking Defense Counsel

But see “Cloud Cases”

State v. Nance, -- N.C. App. – (5/6/2003) (no new trial; prosecutor referred to “The Shadow,” a fictional crime fighter who “had the power to cloud men’s minds,” stating “that’s what the defense is attempting to do”)

State v. Larrimore, 340 N.C. 119 (1995) (prosecutor argued defense counsel “cast up” a “cloud” of “smoke,” “smog,” “dust,” & “dirt” & that “The defense wants you chasing rabbits, when you ought to be hunting bear. And the bear is the truth. But they want you chasing rabbits;” although rich in hyperbole, no error in these arguments)

© 2003

slide65

Attacking Defense Counsel

But see “Ingenuity Cases”

State v. Grooms, 353 N.C. 50 (2000)(intervention ex mero motu not required; prosecutor referred to counsel's strategy as "ingenuity of counsel" & argued: “what is a defense counsel's role in this case? ... Their job is . . . to create as much smoke and fog ... as possible.”)

State v. Harris, 338 N.C. 211 (1994) (reference to ingenuity of counsel did not require intervention ex mero motu)

© 2003

slide66

Attacking Defense Counsel

But see “Ingenuity Cases”

State v. Grooms, 353 N.C. 50 (2000)(intervention ex mero motu not required; prosecutor referred to counsel's strategy as "ingenuity of counsel" & argued: “what is a defense counsel's role in this case? ... Their job is . . . to create as much smoke and fog ... as possible.”)

State v. Harris, 338 N.C. 211 (1994) (reference to ingenuity of counsel did not require intervention ex mero motu)

© 2003

slide67

Attacking Defense Counsel

And . . . “Lawyer Trick Case”

State v. Bowman, 349 N.C. 459 (1998) (no abuse of discretion when court overruled D’s objection to prosecutor’s isolated argument that reasonable doubt is not created by “lawyers getting up here and arguing to you and trying to do those lawyer trick things”).

© 2003

slide68

Attacking Defense Counsel

And . . .

State v. Best, 342 N.C. 502 (1996) (no error when prosecutor argued: [D is] not entitled to have you buy that cock-and-bull mess that [defense counsel] have thrown up to you”)

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slide70

“[L]et there be no mistake. It is the expressed intention of this Court to make sure all parties stay within the proper bounds of the laws and decisions of this Court relating to closing argument.”

Walters, 357 N.C. at 108 (emphasis in original)

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slide72

404(b): There are Limits

(b) Other crimes, wrongs, or acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. Admissible evidence may include evidence of an offense committed by a juvenile if it would have been a Class A, B1, B2, C, D, or E felony if committed by an adult.

© 2003

slide73

404(b): There are Limits

  • Watch out for:
  • Bare fact of conviction

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slide74

404(b): There are Limits

  • State v. Wilkerson, 356 N.C. 418 (2002)
  • Poss. w/intent sell/deliver cocaine & trafficking
  • State’s Ws testified re: the facts surrounding D’s prior convictions
  • Dep. Clerk of Court testified D had prior cocaine convictions for poss., poss. w/intent sell/deliver; sale & delivery

© 2003

slide75

404(b): There are Limits

  • D didn’t testify
  • On appeal, D challenged 404(b) evidence
  • Court of Appeals held that all evidence re: priors was properly admitted to show intent & knowledge

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slide76

404(b): There are Limits

  • N.C. S.Ct. reversed, for reasons stated in dissent below
  • Wynn, dissenting, didn’t have a problem w/admission of the facts and circumstances re: priors under 404(b); his problem was w/the “bare facts” of the prior convictions, admitted through testimony of the Clerk

© 2003

slide77

404(b): There are Limits

  • Wynn’s reasoning:
  • R 609 allows use of “convictions” to impeach a testifying D while excluding facts & circ. underlying such convictions; 404(b) allows admission of “other crimes” w/out mention of prior convictions
  • . . .

© 2003

slide78

404(b): There are Limits

  • Wynn’s reasoning:
  • Bare fact of prior conviction not probative of any 404(b) purpose; facts & circumstances have probative value
  • Even if relevant, R 403 would require exclusion

© 2003

slide79

404(b): There are Limits

  • Wynn’s exceptions:
    • Logical:
    • Prior conviction probative of motive or intent e.g., assault on W who helped procure a prior conviction

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slide80

404(b): There are Limits

Wynn’s exceptions:

(2) Case law:

Sex offense cases. See State v. Hall, 85 N.C. App. 447 (1987) (in attempted rape case, previous sex offense conviction admitted to show intent to rape)

Admission of prior traffic-related convictions to prove malice in 2nd degree murder cases

© 2003

slide81

404(b): There are Limits

  • Wilkerson wrap up:
  • Bare fact of conviction can’t come in under 404(b), even where underlying facts & circumstances are offered
  • Allowing bare fact of conviction in for cases where D doesn’t testify  reversible error

© 2003

slide82

BUT WAIT!!

THERE’S MORE . . .

© 2003

slide83

404(b): There are Limits

  • State v. Hairston, 156 N.C. App. 202 (2003)
  • Felony poss. of cocaine & HF; D testified
  • During State’s evidence, Dep. Clerk of Court testified re: D’s 2 prior drug convictions; no evidence re: underlying circumstances offered; trial court gave limiting instruction that evid. only could be considered for motive, identity, etc. . .

© 2003

slide84

404(b): There are Limits

  • State v. Hairston, 156 N.C. App. 202 (2003)
  • D appeals, arguing error to allow Clerk to testify re: priors convictions; gets new trial
  • Citing Wilkerson, said: bare fact of a D’s prior convictions is not admissible under 404(b) absent some offer of evidence re: the facts & circumstances underlying the priors

© 2003

slide85

404(b): There are Limits

  • State v. Hairston, 156 N.C. App. 202 (2003)
  • D appeals, arguing error to allow Clerk to testify re: priors convictions; gets new trial
  • Citing Wilkerson, said: bare fact of a D’s prior convictions is not admissible under 404(b) absent some offer of evidence re: the facts & circumstances underlying the priors

© 2003

slide86

404(b): There are Limits

“Under the holding in Wilkerson, the trial court erred in admitting this testimony for substantive purposes under Rule 404(b) without evidence of the underlying facts to show similarities between the prior convictions and the present offense charged. ” (emphasis added)

© 2003

slide87

404(b): There are Limits

“Under the holding in Wilkerson, the trial court erred in admitting this testimony for substantive purposes under Rule 404(b) without evidence of the underlying facts to show similarities between the prior convictions and the present offense charged. ”

But in Wilkerson evidence re: underlying facts came in through other Ws!

© 2003

slide88

404(b): There are Limits

“Under the holding in Wilkerson, the trial court erred in admitting this testimony for substantive purposes under Rule 404(b) without evidence of the underlying facts to show similarities between the prior convictions and the present offense charged. ”

Is this consistent with Wilkerson?

© 2003

slide89

404(b): There are Limits

  • The big wrap up:
  • Under both Wilkerson & Hairston, fact of prior conviction can’t come in under 404(b) if no evidence of facts underlying convictions is offered
  • Does Hairston create uncertainty re: what else we can take from Wilkerson?

© 2003

slide90

404(b): There are Limits

  • Watch out for:
  • Bare fact of conviction
  • Similarity – there’s got to be some

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slide91

404(b): There are Limits

  • State v. Willis, 136 N.C. App. 820 (2000)
  • New trial ordered in CL robbery case

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slide92

404(b): There are Limits

  • Trial court admitted evidence that D was convicted of CL robbery to show identity & modus operandi, motive, & common scheme or plan
  • Evidence came in through indictment charging D w/CL robbery, judgment & conviction & transcript of plea

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slide93

404(b): There are Limits

  • To be admissible re: identity, MO of crimes must be sufficiently similar to support reasonable inference that same person did both
  • To be admissible re: common plan/scheme, also need sufficient similarity
  • For motive, prior act must pertain to the chain of events so as to explain motive

© 2003

slide94

404(b): There are Limits

  • Only commonality here: perpetrator of each robbed a stranger & used force
  • No evidence re: manner of other robbery thus it couldn’t show identity or common plan; also insufficient evidence to show motive
  • Only relevance was for propensity; new trial
  • Note: Pre-Wilkerson case

© 2003

slide95

404(b): There are Limits

  • State v. Al-Bayyinah, 356 N.C. 150 (2002)
  • New trial in capital case involving attempted robbery w/dang. weapon & felony murder
  • Grocery store robbery; V was surprised from behind, hit on head & stabbed

© 2003

slide96

404(b): There are Limits

  • A 2nd grocery store owner testified re: 2 robberies occurring about 1 month earlier; owner didn’t ID perpetrator at time but after robbery at issue, IDed D from picture
  • In 1st, man w/mask & dark clothes came to store with gun & demanded $
  • In 2nd, man in dark clothes asked for cigarettes, splashed gas on counter & V & demanded $ while threatening to ignite

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slide97

404(b): There are Limits

  • NC S.Ct. held that details of prior robberies were “generic to the act of robbery,” e.g., dark clothes, used weapon, demanded money & flight
  • Priors dissimilar from each other & both different from case at hand
  • Note: also ID issue re: perpetrator of prior robberies

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slide98

404(b): There are Limits

  • State v. Williams, 156 N.C. App. 661 (2003)
  • New trial ordered; drug possession
  • D in car driven by male; LEO saw car stop & D enter house where other drug offenses had occurred; after D returned, LEO made traffic stop & noticed wet tissue paper in passenger side door; had cocaine on it

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404(b): There are Limits

  • 404(b) testimony of informant to show motive & intent: 4 months earlier, she called D & arranged meeting to buy drugs; met D in parking lot; D was in passenger vehicle driven by female; D took out a black pill container & sold W cocaine for money

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404(b): There are Limits

  • Similarity “non-existent;” also no evidence relevant to motive
  • Only illustrated predisposition

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404(b): There are Limits

Final note:

NC courts more liberal with the similarity requirement in child sex offense cases. See e.g., State v. Smith, 152 N.C. App. 514 (2002) (case involving rubbing breasts & digital penetration by stepfather of 12-year-old stepchild; prior acts were intercourse & oral sex w/15-year-old babysitter & admitted to show absence of mistake & common scheme or plan)

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404(b): There are Limits

  • Watch out for:
  • Bare fact of conviction
  • Similarity – there’s got to be some
  • Temporal proximity

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404(b): There are Limits

  • State v. Goodman, 357 N.C. 43 (2003)
  • 2nd-degree murder case; D was driving while impaired
  • To show malice, State introduced D’s driving record of numerous convictions for traffic violations, including DWIs; record went back to 37 years

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404(b): There are Limits

  • Over a dissent, Court of Appeals said some of the priors were too remote but considered that a “weight” issue not one of “admissibility;” court found no plain error
  • NC S.Ct. reversed for reasons stated in dissent

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404(b): There are Limits

  • Dissent had noted that as acts become remote in time, “commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor

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404(b): There are Limits

  • Dissent concluded that the record going back 37 years violated 404(b)’s temporal proximity requirement
  • Acknowledged it was bound by State v. Miller, 142 N.C. App. 435 (2001) (convictions dating back 16 years not too remote)

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Probation

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Probation

  • Jurisdiction to revoke after probation has ended
  • Appeals from district court probation violations: What now?!?!

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Jurisdiction to revoke

G.S. 15A-1344(f)

(f) Revocation after Period of Probation.--The court may revoke probation after the expiration of the period of probation if:(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.

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Jurisdiction to revoke

G.S. 15A-1344(f)

(f) Revocation after Period of Probation.--The court may revoke probation after the expiration of the period of probation if:(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.

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Jurisdiction to revoke

  • State v. Moore, 148 N.C. App. 568 (2002)
  • 11/3/95: probation violation report submitted to clerk’s office but not file stamped
  • 6/3/99: 5-year period of probation expired
  • 7/6/00: Revocation hearing & probation revoked

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Jurisdiction to revoke

State v. Moore, 148 N.C. App. 568 (2002)

Held:

Without evidence that report was “filed” before D’s probation expired  trial court lacked jurisdiction to revoke

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Jurisdiction to revoke

G.S. 15A-1344(f)

(f) Revocation after Period of Probation.--The court may revoke probation after the expiration of the period of probation if:(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.

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Jurisdiction to revoke

G.S. 15A-1344(f)

(f) Revocation after Period of Probation.--The court may revoke probation after the expiration of the period of probation if:(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.

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Jurisdiction to revoke

  • State v. Hall, -- N.C. App. – (10/7/2003)
  • Facts:
  • Probation ended 5/17/2002
  • Revocation hearing on 8/19/2002

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Jurisdiction to revoke

State v. Hall, -- N.C. App. – (10/7/2003)

Held:

Citing State v. Camp, 299 N.C. 524 (1980): “Because the trial court did not make any findings (nor is there evidence in the record to support such findings) that the State made reasonable effort to conduct the hearing earlier, . . . jurisdiction was lost by lapse of time . . . .”

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Jurisdiction to revoke

  • Hall decision doesn’t say much about underlying facts
  • In Camp, D appeared some 23 times in court for revocation hearing & wasn’t heard
  • Camp court noted that D didn’t contribute to delay by absconding & no new criminal charges  tolling

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Jurisdiction to revoke

G.S. 15A-1344(f)

(f) Revocation after Period of Probation.--The court may revoke probation after the expiration of the period of probation if:(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.

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State v. Hooper, -- N.C. App. – (7/1/03)

  • D pled guiltyto felony forgery & felony uttering in district court
  • D placed on probation
  • After district judge revoked probation, D appealed to Court of Appeals

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Says: On one hand 15A-1347, enacted in 1977, provides:

  • When a district court judge, as a result of finding a violation of probation activates a sentence or imposes special probation, appeal is to superior court for a de novo revocation hearing
  • Note: in 1977, district court did not have jurisdiction to dispose of felony cases

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7A-272, as amended in 1995:

  • Subsection (c) gives district court jurisdiction to take guilty/no contest pleas in certain cases for Class H or I felonies. Provides that . . .

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“Provisions in [G.S. Ch. 15A] apply to a plea authorized under subsection (c) . . . as if the plea had been entered in superior court, so that a district court judge is authorized to act in these matters in the same manner as a superior court judge would be authorized to act if the plea had been entered in superior court, and appeals that are authorized in these matters are to the appellate division.”

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Provisions conflict

  • Applied rule that specific (7A-272) controls over general (15A-1347)
  • Applied rule that most recent (7A-272) reflects latest legislative intent
  • Finally, noted amendment to 15A-1029.1

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Over a dissent, held that 7A-272 applied & that the appeal was properly before the court of appeals

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BUT WAIT!!

THERE’S MORE . . .

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State v. Harless, -- N.C. App. – (8/19/03)

  • Appeal from district court judgment revoking probation & activating sentence
  • “Because we conclude that [D] cannot appeal the revocation of his probation directly from the district court, we dismiss this appeal”

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Both State & D conceded Court of Appeals could not hear the appeal

  • Applied 15A-1347 & said appeal should be in superior court

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Acknowledged Hooper; said b/c it was a divided decision & “given the probability of review by our Supreme Court . . . the issue remains undecided.”

  • Judge who authored Hooper, dissented, arguing one panel can’t overrule another

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Hooper says appeals go to Court of Appeals

Harless says appeals go to Superior Court

v.

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Prayer for Judgment Continued

Judge Lynn Johnson

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?

What is it

Not suspended sentence.

Is in lieu of judgment; pronouncement of judgment is suspended

Can you do it

Yes. See e.g., State v. Thompson, 267 N.C. 653 (1966).

?

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Common uses

D flees during trial, is tried in absentia; PJC to continue sentencing until apprehended. See e.g., State v. Bass, 303 N.C. 267 (1981); State v. Cousin, 292 N.C. 461 (1977).

To delay sentencing to get pre- sentence report

?

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Issues

?

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(1) Fouling it up by adding conditions that amount to punishment

Golden Rule: PJC is converted into a judgment if it includes conditions that amount to punishment.

See State v. Brown, 110 N.C. App. 658 (1993) (citing State v. Griffin, 246 N.C. 680, 682 (1957)).

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What’s OK to add?

Costs.See 15A-101(4a); Brown, 110 N.C. App. 658 (citing State v. Crook, 115 N.C. 760 (1894))

Requirements to obey the law.See Brown, 110 N.C. App. 658 (citing State v. Cheek, 31 N.C. App. 379 (1976))

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What’s not OK?

Fine or Imprisonment.See State v. Griffin, 246 N.C. 680 (1957); Brown, 110 N.C. App. 658

Condition that D continue psychiatric treatment.Brown, 110 N.C. App. 658

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(2) How long can it last?

Reasonable time.See State v. Degree, 110 N.C. App. 638 (1993) (no error when PJC until 6/3/91 but sentence not imposed until 7/16/91)

Reasonableness defined by reason for delay, length of the delay, whether D has consented to the delay, & actual prejudice to D resulting from delay. See id.

Unreasonable time  loss of jurisdiction. See id.

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(3) Should it be definite (e.g., 30 days) or indefinite?

Can do either. See Degree, 110 N.C. App. 638.

And even if judgment isn’t entered within a definite time set, it will be OK, provided the PJC is not continued for an unreasonable & D was not prejudiced. See id.; State v. Absher, 335 N.C. 155 (1993).

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(4) Does the judge who entered the PJC have to enter judgment?

No. See e.g., State v. Sauls, 291 N.C. 253 (1976).

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(5) Effect of PJC

(a) Can’t appeal it. See, e.g., State v. Pledger, 257 N.C. 634 (1962).

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(4) Effect of PJC

(b) “Conviction” under R. 609?

See State v. Sidberry, 337 N.C. 779 (1994) (D pled guilty & PJC entered; guilty plea freely, understandingly, & voluntarily entered, is = conviction for purposes of R. 609); Cf. Britt v. N.C. Sheriffs’ Educ. & Training Standards Comm’n, 348 N.C. 573 (1998) (plea of no contest followed by prayer for judgment was "conviction" under NC Admin. Code governing certification of police officers). But seeState v. Lynch, 337 N.C. 415 (1994) (no conviction when court record showed W was charged with assault, pled guilty, no verdict was shown on document but document did indicate PJC was entered).

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(4) Effect of PJC

(c) Use at sentencing

Under FSA, not a “prior conviction.” See State v. Southern, 314 N.C. 110 (1985).

FSA 15A-1340.4(a)(1)(o): prior conviction(s) punishable by > 60 days confinement = statutory aggravator

FSA 15A-1340.2(4) defines “prior conviction”: “when he has been adjudged guilty or has entered a plea of guilty or no contest, and judgment has been entered thereon”

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(4) Effect of PJC

(c) Use at sentencing

Under SSA, can count for prior record level. See State v. Hatcher, 136 N.C. App. 524 (2000); State v. Graham, 149 N.C. App. 215 (2002).

SSA 15A-1340.11(7): “[a] person has a prior conviction when . . . [he/she] has been previously convicted of a crime.”

15A-1331(b): “a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or not contest.”

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