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Tuck in Your Shirt! Criminal Contempt in NC District Courts

Damon Chetson — Sat, 04 Feb 2012 23:29:13 +0000

Judges in North Carolina, whether they are District Court or Superior Court judges, have the power to rule in contempt hearings pursuant to N.C.G.S. Chapter 5A.

Criminal contempt can be punished by censure, imprisonment up to 30 days, or a $500 fine, or any combination of the three. Criminal contempt can come in two forms: direct or indirect. Direct contempt is contempt that:

Is committed within the sight or hearing of a presiding judicial official; and
Is committed in, or in immediate proximity to, the room where proceedings are being held before the court; and
Is likely to interrupt or interfere with matters then before the court.

Except for contempt under G.S. 5A?11(5) or 5A?11(9), fine or imprisonment may not be imposed for criminal contempt, whether direct or indirect, unless:

The act or omission was willfully contemptuous; or
The act or omission was preceded by a clear warning by the court that the conduct is improper.

Does having your shirt untucked interrupt or interfere with matters then before the court? Probably not, but that doesn’t stop judges from putting people in custody for having untucked shirts.

Direct criminal contempt can be punished in one of two ways: through a summary hearing, or through a non-summary hearing. A summary hearing is one that happens immediately upon judge believing something contemptuous has happened. A non-summary hearing is one in which the person is told that at a later time he will need to come back for a contempt hearing.

At a non-summary contempt hearing, a person has all the normal procedural rights that would be afforded in a regular criminal matter, although the person does not have a right to a jury trial. At a non-summary contempt hearing, the person has the right to counsel, for instance. And the right to remain silent.

More to the point, the Fourth Circuit Court of Appeals held in Brandt v. Gooding (2011) that:

Twenty-three years later in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), the Supreme Court clarified that the same due process rights apply, under the Fourteenth Amendment, to individuals accused of criminal contempt in state court. In re Oliver involved a Michigan state judge acting as a “‘one-man grand jury’” who disbelieved an individual’s testimony based, in part, on the testimony of another witness. See id. at 258, 68 S.Ct. 499. The state judge “immediately charged [the witness] with contempt, immediately convicted him, and immediately sentenced him to sixty days in jail.” Id. at 259, 68 S.Ct. 499. The Supreme Court held that the state court’s failure to afford the witness “a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law.” Id. at 273, 68 S.Ct. 499.

The In re Oliver Court emphasized that summary criminal contempt proceedings are available only in limited circumstances where an individual’s misconduct not only occurs “within the ‘personal view’ of the judge, ‘under his own eye,’” id. at 274, 68 S.Ct. 499, but also “disturbs the court’s business.” Id. at 275, 68 S.Ct. 499. Unless “all of the essential elements of the misconduct . . . are actually observed by the court” and “immediate punishment is essential to prevent `demoralization of the court’s authority,’” id., an individual must be afforded “reasonable notice of [the] charge against him[ ] and an opportunity to be heard in his defense,” including “a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.”[5] Id. at 273, 68 S.Ct. 499. Because In re Oliver involved a factual scenario in which “essential elements” of the witness’ alleged “offense” were not within the personal knowledge of the judge, thus requiring the judge to “depend upon statements made by others for his knowledge,” id. at 275, 68 S.Ct. 499, the Supreme Court held that the witness should have been “accorded notice and a fair hearing.” Id. at 275-76, 68 S.Ct. 499.

While it’s completely appropriate for judges to enforce order in the court – prevent outbursts, even ask people to silence their phones – the practice of finding contempt simply as a way to lord over other human beings or as a way to enforce dress codes is abhorrent in a democratic system.

The state’s laws governing criminal contempt can be found here.

Raleigh DWI lawyer Damon Chetson defends people charged with felonies, misdemeanors, traffic and DWI charges in Raleigh, Cary, Apex, and Chapel Hill, NC. Durham DWI lawyer Damon Chetson also defends people charged with crimes in Durham, Chatham, and Harnett Counties. We are available day or night, weekdays or weekends. Call The Chetson Firm for a free consultation (919) 352-9411.

First Degree Burglary in North Carolina

Damon Chetson — Fri, 03 Feb 2012 20:02:06 +0000

We’re approaching that time of year when the weather starts to get a little nicer (although this year has been a very mild winter in Raleigh!)

Around this time, people start coming out of their homes to enjoy the weather, to have fun, and to hang out with friends.

And each spring in Wake County we have a series of crimes that are strikingly similar. They involve teenagers, typically out on a prank, or maybe up to more serious wrong doing. Maybe they’re looking for some easy money. Steal something and sell it on Craigslist or eBay.

Or maybe they’re just trying to take something that isn’t theirs for their own use.

These acts usually involve the teenagers running into garages, sometimes at night, and stealing bikes or even just beer, or vandalizing.

The result is a spate of First Degree Burglary, Second Degree Burglary, or Felony Breaking & Entering (B&E) charges, where young people face the possibility of not only felony records but also active jail time.

The difference between First and Second Degree Burglary is that in First Degree Burglary the residence must be occupied at the time of the Burglary, and in Second Degree Burglary the residence is unoccupied. Second Degree Burglary also includes the curtilage and outbuildings not connected to the dwelling.

Burglary in North Carolina occurs at night. This is one of the few jurisdictions that maintains the old common law distinction between nighttime burglary and day-time breaking and entering.

Ex: Let’s say someone breaks into the garage of a Raleigh home at night with the intent to commit a theft. Is that First Degree Burglary? Probably, so long as the garage is attached to the dwelling home. If the garage is a separate building within the curtilage, then the crime is probably a Second Degree Burglary.

Importantly, First Degree Burglary is a mandatory prison sentence, even for first time offenders.

Breaking & Entering may be either a misdemeanor or a felony, but in either case probation is generally imposed for first time offenders.

Raleigh criminal lawyer Damon Chetson helps individuals charged with crimes - misdemeanors, felonies, and DWI and traffic charges - in Raleigh, Cary, Apex and other communities in Wake County and the Research Triangle of North Carolina. Durham DWI lawyer Damon Chetson also represents people throughout the Research Triangle. We are available day or night, weekdays or weekends. Call (919) 352-9411 day or night.

The State’s Use of Appeal and MAR in District Court

Damon Chetson — Wed, 01 Feb 2012 21:16:31 +0000

When a judge renders a judgment in District Court, a Defendant has a number of options. The Defendant can appeal the judgment within 10 days for a trial de novo in Superior Court. If the Defendant misses that 10-day window, the Defendant may also seek to re-open the case through a Motion for Appropriate Relief (MAR).

What about the State? What happens when a prosecutor doesn’t like a result in District Court? What can a prosecutor do to “get justice”?

What happens when a judge sentences a defendant in District Court, but the State doesn’t think the sentence is harsh enough?

A prosecutor also has an opportunity to appeal, although for more limited reasons. And a prosecutor may also file a Motion for Appropriate relief. But a prosecutor can’t ask for a harsher punishment if he doesn’t like the judgment imposed in District Court. That’s because when judgment was imposed, jeopardy attached. Once jeopardy attaches, the Defendant’s federal constitutional rights are implicated.

The State has no countervailing rights. This is a country of individual liberties, protected by a Constitution from state power. The state may have procedural obligations. And there may be interests of fairness to the State’s lawyers – called “prosecutors”. But the state is not the equivalent of the Defendant.

In a criminal trial, the Defendant’s rights hold special importance. Consequently, the phrase, “being fair and impartial to the State of North Carolina and the defendant” misses the point. Fairness and impartiality has to do with the procedural rules. But ties always go to the Defendant in our system, even if judges don’t always commit to that lofty ideal.

Let’s return to the above question. What recourses does a prosecutor have after a judgment has been issued in District Court?

N.C.G.S. 15A-1432 (pdf) permits the prosecutor to appeal to Superior Court when Double Jeopardy has not attached and when “there has been a decision or judgment dismissing criminal charges as to one or more counts” or “upon the granting of a motion for a new trial on the ground of newly discovered or newly available evidence but only on questions of law.”

When jeopardy has attached, either upon a guilty plea or upon a dismissal or not-guilty verdict at the close of State’s evidence, the prosecutor cannot re-open the case because doing so would put the defendant twice in jeopardy of life or limb.

What about a Motion for Appropriate Relief? Can the State use a MAR to try to re-open a judgment it doesn’t like?

N.C.G.S. 15A-1416 says yes, but only for the relief that it may assert upon appeal, which means only for reasons outlined in N.C.G.S. 15A-1432.

N.C.G.S. 15A-1416 also allows the State to pray judgment at any time when grounds for the imposition of the sentence in the PJC are asserted or for probation violations.

Recently the Johnston County court system had to contend with issues involving illegally dismissed cases. The new District Attorney attempted to open the old cases, but was rebuffed by a judge who held that the State’s chance to file the MAR had expired 10 days after the dismissal of each of the cases. (The State potentially could’ve refiled on those cases if the State had caught the corruption scandal within a year of the dismissal.)

If you're in need of a tough, experienced Raleigh, Cary or Apex criminal lawyer, call our offices day or night. The Chetson Firm represents individuals charged throughout the Research Triangle - Wake, Durham, Orange, and Chatham counties. Call anytime - (919) 352-9411 - weekdays, weekends, evenings or holidays.

Miranda and the Nexus Between a Confession and a Coercive Interrogation

Damon Chetson — Sat, 28 Jan 2012 21:47:00 +0000

In Bobby v. Dixon:

Archie Dixon and Tim Hoffner murdered Chris Hammer in order to steal his car. Dixon and Hoffner beat Hammer, tied him up, and buried him alive, pushing the struggling Hammer down into his grave while they shoveled dirt on top of him. Dixon then used Hammer’s birth certificate and social security card to obtain a state identification card in Hammer’s name. After using that identification card to establish ownership of Hammer’s car, Dixon sold the vehicle for $2,800.

On November 4, Defendant Dixon went to the police station. A police detective Mirandized Dixon, at which point Dixon refused to speak without an attorney. The Defendant left the police station.

On November 9, suspicion focused even more on Dixon and he was arrested for forgery. He was not charged with murder, even though police did suspect him of the murder.

Police intentionally withheld Miranda warnings. They questioned him about the murder and the forgery. The defendant admitted to the forgery, but refused to confess to the murder.

Police tried to persuade Dixon over four hours to admit to the murder, telling him that they had his co-defendant in custody and whoever confessed first would get the better deal. Dixon refused to confess, and was arrested for the forgery and placed in custody.

He was taken to jail.

Four hours thereafter Dixon was returned to the police department, where he was re-interrogated. Dixon said that he had heard that that police had found the body, and asked whether his accomplice was in custody. Dixon said, I’ve spoken to my lawyer and I’d like to talk. Police provided him his Miranda warnings (on tape). Dixon confessed, which was later used at trial to convict him of murder.

He appealed, saying that the failure to read the Miranda Warnings early enough constituted a violation of his rights in Arizona v. Miranda.

The Supreme Court held that the confession was not coercive, and that there was not enough of a connection between the unwarned confession and the police suspicion and the requirement that Miranda Warnings be read.

Confrontation Clause: Right to Confront

Damon Chetson — Wed, 25 Jan 2012 22:14:28 +0000

Testimonial statements may not be admitted at trial if the witness is unavailable and the defendant has not had an adequate prior opportunity to cross-examine the witness. Such statements would violate the defendant’s Confrontation Clause rights if admitted at trial.

What constitutes an adequate prior opportunity to cross examine?

In State v. Ross, the Defendant got to cross examine a witness at a probable cause hearing, but the witness was not available at trial. The State sought to introduce prior statements by the witness at Trial. The defendant objected that those statements were inadmissible because the Defendant had had the opportunity to cross-examine at probable cause.

The Defendant on appeal focused on the fact that he did not have adequate prior opportunity to cross examine the witness, and that therefore his Confrontation Clause rights were compromised.

He noted that his lead trial counsel had not been appointed at the time of the probable cause hearing.

The Court of Appeals held that the testimony at the probable cause hearing did afford the Defendant an opportunity to cross examine, and so the witnesses’ statements at the probable cause hearing were admissible at trial even though the witness was unavailable at trial for the defendant’s trial counsel to cross-examine.

Is Running from the Police Unlawful?

Damon Chetson — Tue, 24 Jan 2012 21:27:33 +0000

What if the officer has no suspicion of criminal activity, but the officer observes a person and tells him to stop. The person takes off running. Has the person committed a crime of Resist, Delay, and Obstruct?

In State v. White, officers received a report of loud music in a high crime area:

The State’s evidence tended to show the following. On the 2:00 p.m. to midnight shift of 15 August 2008, Detective Brian Edwards and Sergeant Jack Austin of the Southern Pines Police Department were on patrol in an unmarked white Dodge Durango. Sometime after dark, the officers received a report from dispatch complaining of loud music near the corner of Coates Street and Shaw Avenue. Although this location is at the center of Brookside Park Apartments, the report did not identify the apartment complex or a specific apartment within it as the source of the music complaint, nor did it identify the person who made the complaint. Additionally, Coates Street intersects Shaw Avenue at two locations, but the report did not specify either intersection as the subject of the loud music complaint.

Detective Edwards testified that he had been to the Brookside Park Apartments on “several occasions throughout the evening” and had made between fifty and one hundred drug arrests there in the past. He also stated he was aware of other arrests made at that location by other officers of his department, and thus he believed it to be a high-crime area.

Responding to the loud music complaint, Detective Edwards saw three or four men, including Defendant, standing near a dumpster near the intersection of Coates and Shaw Streets. The officer did not recognize any of these men, but decided to question them about the loud music. As Detective Edwards turned from Shaw Avenue on to Coates Street, he stopped his vehicle about thirty-five feet from the men and on the opposite side of the dumpster.

The officers were dressed in cargo pants and blue polo shirts with “Police” written in black letters on the back and an embroidered badge on the front left chest. The officers’ car was unmarked with no labels, decals, or exterior lights. Detective Edwards testified that as he was exiting the vehicle and turning to close the door, he heard Sergeant Austin yell, “Stop! Police[,]” and he “took off running around the back side of the vehicle.” Detective Edwards then “ran to the opposite side of the Dumpster so [he] could see[,]” and observed Sergeant Austin chasing a black male up Shaw Avenue. Detective Edwards gave pursuit behind Sergeant Austin.

The officer found a baggy of crack cocaine after tackling and handcuffing the defendant. The NC Court of Appeals held that the arrest for RDO was illegal because there was no probable cause to arrest because the defendant was free to ignore the police officer’s command to stop. The defendant had no obligation to stop. He had a right to flee.

State v. Joe is a similar case resulting in an illegal arrest for an RDO.

Running may contribute to reasonable suspicion to conduct a Terry Stop, where there are enough other facts to suggest criminal activity is permitted.

The Court of Appeals seems to view the attempt to justify a stop on running as a bad approach by the State.

Raleigh criminal lawyer Damon Chetson defends people charged with felonies, misdemeanors, traffic and DWI charges in Raleigh, Cary, Apex, and Wake County, NC. Durham Criminal Lawyer Damon Chetson also represents people charged in Wake County, Durham County, Orange County and Chatham County. The Chetson Firm is available day or night, weekdays or weekends. Call day or night for a free consultation (919) 352-9411.

Warrantless Dog Sniffs in Drug Cases

Damon Chetson — Sun, 15 Jan 2012 22:20:05 +0000

Police conducted a warrantless dog sniff test by a dog trained in drug detection at Joelis Jardines’ home five years ago. The police had received an unverified tip that Jardines’ home was being used to grow marijuana.

Under well established constitutional law, the unverified tip did not create probable cause.

In December 2006, police went to the home, and observed it for fifteen minutes. There were no cars in the driveway, the blinds were closed, and there was no observable activity.

After fifteen minutes, a dog handler arrived with a drug detection dog. The dog and the handler walked to the door. The dog alerted to the scent of contraband. Forget for a moment that dogs are notoriously unreliable when it comes to drug detection.

The dog was considered reliable enough to create probable cause. The detective also noted that the air conditioning unit was running constantly – consistent with the use of hydroponic grow lights in a marijuana grow operation.

Based on these observations, police obtained a warrant, and conducted a search, ultimately charging Jardines with drug trafficking.

While the U.S. Supreme Court has adddressed dog sniff tests in three cases – U.S. v. Place, 462 U.S. 696, City of Indianapolis v. Edmond, 531 U.S. 32, and Illinois v. Caballes, 543 U.S. 405, it has not decided a dog sniff case in the context of a front door, warrantless sniff of a home.

However, in Kyllo v. U.S., the Supreme Court held that people have an expectation of privacy such that the use of thermal imaging technology, which is not typical in every day life, to detect a grow operation was clearly a violation of that privacy.

In 2011, the Florida Supreme Court ruled in State v. Jardines that the sniff test conducted at his home was in fact an intrusive procedure, and that since Jardines had an expectation of privacy, the warrantless search was unconstitutional.

The Supreme Court has granted a Writ of Certiori which means the case will be heard by the Supreme Court for an ultimate decision.

Wake County lawyer Damon Chetson helps people accused of serious felonies, misdemeanors, drug charges, DWI and traffic offenses in Raleigh, Apex, Chapel Hill, and Cary, NC. Chapel Hill lawyer Damon Chetson also represents people charged with felonies and criminal charges in Raleigh, Cary, Apex, Chapel Hill, and Durham, North Carolina. Our lawyers are available day or night, weekdays or weekends. Call (919) 352-9411 for a free consultation.

Victory for Criminal Defendants

Damon Chetson — Sun, 15 Jan 2012 22:11:51 +0000

Discovery is the process by which each side in a legal dispute is entitled to receive information from the other side. Usually in a criminal matter, discovery goes one way – from the prosecution to the defense. That’s because in a criminal matter, the prosecution – through the police – such as the Raleigh Police Department – and associated agencies such as Child Protective Services receives information about the criminal investigation into the matter.

There are three legal frameworks in which a person is entitle to discovery in North Carolina – statutory, state constitution, and the federal constitution.

North Carolina’s statutory discovery provisions for felonies is located at N.C.G.S. Chapter 15A, Article 48 basically creates what’s called an “open file discovery” system whereby the Defense is entitled to “the complete files of all law enforcement and prosecutorial agencies involved in the investigation.”

In addition to these broad protections under the NC General Statutes, defendants in North Carolina are entitled to discovery under the North Carolina Constitution and the United States Constitution.

The basic constitutional law governing discovery under the federal constitution was developed in the 1960s principally in a case called Brady v. Maryland which requires the government to turn over everything that’s exculpatory. Subsequent cases have held that exculpatory evidence may be evidence that is favorable to the defendant at sentencing. Still other cases have held that the prosecution must make a good faith review of agency files for exculpatory material – the prosecution may not plead ignorance by failing to inspect police files. And other cases have held that even confidential material in Child Protective Services or school records may be subject to disclosure, sometimes following an in camera review by the trial judge.

This case law applies to the states and well as the federal government.

Today, the Supreme Court reaffirmed its commitment to Brady and the rule that the defense is entitled to exculpatory information.

Juan Smith was convicted of killing five people in 1995 when a group of men busted into a home in search of money and drugs and, ultimately, opened fire on the occupants.

Smith was the only person tried for the murders based solely on eyewitness testimony of a survivor. Elsewhere I’ve written about how eyewitness testimony is unreliable. People often don’t really remember events as accurately as they think they do.

In this case, prosecutors did not have any DNA, fingerprints, weapons, or other physical evidence.

It later turned out that prosecutors failed to reveal to the Defense reports of interviews with the witness. In one of the interviews, the witness told prosecutors that he could not describe the killers, except to say they were black men. Several days later, he had told police that he had not seen any of the peoples’ faces. Yet months later in a trial the witness was supposedly sure Juan Smith was the killer.

There was no question, Chief Justice John G. Roberts Jr. wrote for the majority, that the reports should have been turned over under Brady v. Maryland, a 1963 Supreme Court decision that requires prosecutors to provide favorable evidence to the defense. The question for the justices was only whether the failure mattered — that is, in the words of a 2009 decision, whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”

This ruling reaffirms the importance that the Court has assigned to the prosecution’s obligation to turn over all discoverable (meaning, in this case, exculpatory) information to the defense.

Damon Chetson is a North Carolina Lawyer. He practices in Raleigh, Apex, and Cary, North Carolina. He also defends individuals charged with crimes throughout the Research Triangle. He works hard to defend his clients' rights. He represents people charged in all parts of the Research Triangle. If you're looking for a lawyer in Raleigh or Wake County, NC, you can call the us for a free consultation at (919) 352-9411 weekdays, evenings, weekends, and Holidays.

Changes to North Carolina DWI Checkpoint Law

Damon Chetson — Fri, 13 Jan 2012 21:03:11 +0000

Police are permitted under U.S. Constitutional law to establish checkpoints provided they have a specific programmatic purpose, and are not generally used for general crime control.

In other words, the Supreme Court has refused to permit police agencies to establish checkpoints for general policing, since this smacks of a totalitarian approach where everyone is suspect.

North Carolina’s General Assembly recently tightened some restrictions regarding checkpoints, establishing a requirement that cars may not be targeted for being a certain type or a certain age (although police may target commercial vehicles).

The reason seems to be concern that the practice of targeting certain car types or cars of certain ages ends up being a way to target or profile people, which is obviously wrong.

Continuous Alcohol Monitoring (CAM) and Raleigh DWI cases

Damon Chetson — Thu, 12 Jan 2012 20:52:13 +0000

Recent changes to North Carolina’s DWI laws expand the use of Continuous Alcohol Monitoring (CAM). For instance, if a person is sentenced to an Aggravated Level 1 DWI, the person would be required to have at least a four month period of Continuous Alcohol Monitoring (120 days) but it can be imposed for the entire length of the probation.

In addition, a magistrate or judge may impose CAM as a condition of pre-trial release in certain DWI cases where the person was previously arrested and/or convicted of a prior DWI. CAM is an ankle bracelet that measures perspiration for the presence of alcohol.

Continuous Alcohol Monitoring is quite expensive, costing $75 to install and a $12/day fee, which, for a year of use, will cost approximately $4,000. For a 120 days of Continuous Alcohol Monitoring, that can cost $1,500.

In certain cases, a defendant may be able to show the court that he or she can’t afford the cost of CAM, then the defendant may be able to argue that the failure to have CAM may not be a grounds for revocation if the failure was the result solely of an inability to pay.