17 Jan Merry Christmas from the Court
The North Carolina Supreme Court issued over a dozen opinions in criminal cases on 21 December 2016. After my initial scan, things looked bleak for our side of the courtroom. To distract myself from the reality, I decided to consider what impact our newest Supreme Court Justice, Michael Morgan, might have had on the Court’s decisions in criminal cases last year. Of course, no one knows how Justice Morgan will approach criminal cases on appeal. He was a trial judge for many years. At best, that tells us how he views precedent, not how he will decide it. Still, I saw little downside in guessing (and maybe hoping, a little).
After Justice Morgan, a Democrat, defeated Justice Bob Edmunds, a Republican, all sorts of rumors surfaced as to how the Republican controlled legislature would undermine the Court’s new Democratic majority. Some expected the legislature to add two associate justices to the Court (see Article IV, Section 6 of the North Carolina Constitution) so Governor McCrory could create a Republican majority on his way out. The Court adopted a rule on 8 November 2016 that allows the Chief Justice to appoint a substitute justice to consider a case to avoid an evenly divided disposition. In a special session on 14 December, the legislature passed a law changing Supreme Court elections from non-partisan to partisan.
Based on my review of last year’s criminal cases, however, conservatives have little reason for concern. Justice Morgan couldn’t incite a liberal revolution, even if he is inclined.
First, assuming Justice Morgan voted the opposite of Justice Edmunds in every case (an unlikely assumption to say the least), I don’t see any case where he would have changed the outcome. In State v. Williams, 368 N.C. 620, 781 S.E.2d 268 (2016), Justice Edmunds wrote the opinion in favor of the state, Justices Beasley and Hudson dissented, and Justice Ervin took no part in the decision. That means, removing Justice Edmunds from the majority and placing Justice Morgan in the dissent would have created a tie, leaving the Court of Appeals’ opinion in favor of the state in place. That’s the closest call I found.
Second, the messages of the Court’s decisions are clear. The Court of Appeals got it wrong almost every time it ruled in favor of a criminal defendant and got it right almost every time it ruled in favor of the state. The Court awarded one new trial, three new sentencing hearings required by United States Supreme Court precedent, and one remand with instructions to the trial court on how to address an issue related to applications for removal from the sex offender registry.
Years ago, I called a great appellate lawyer after a favorable jury verdict. His response was “thank you for keeping your client out of the North Carolina Supreme Court.” Those were his words, not mine, but I understand his point.
Lest you think this post is limited to whining, I have a few suggestions in response to last year’s opinions.
1. If your client wants to reject a good offer under the rationale that he can appeal if he loses, I am happy to send you my rough chart outlining these decisions.
2. Take what we can from the following opinions:
State v. Dalton, ___ NC ___, 2016 WL 7422409 (21 December 2016). My friend, Ann Peterson, won a new trial for a woman who presented an insanity defense because the prosecutor exaggerated how quickly the woman could be released from a civil commitment, if she prevailed in her defense. I hate objecting more than anyone, but sometimes you have to do it. Ms. Dalton would have lost her appeal without one.
State v. Moir, ___ NC ___, 2016 WL 7422371 (21 December 2016). Justice Ervin explains how trial courts should determine whether certain applicants for removal from the sex offender registry are Tier I or Tier II offenders. This decision is complicated and warrants a detailed analysis, but my immediate reaction is the decision could have been worse for people trying to outlive the registry.
State v. McGrady, 368 NC 880, 787 S.E.2d 1 (2016) confirms that Rule 702(a) of the North Carolina Rules of Evidence incorporates the Daubert standard for admissibility of expert testimony. Of course, the ruling went against the defense, but the optimist in me says we can use the standard to limit some of the evidence supported by questionable science that the state presents as a matter routine.
3. As has always been the case, win at trial, if you can.
Amos Tyndall is a criminal trial lawyer, who represents people accused of serious crimes in state and federal courts throughout North Carolina. He has successfully defended people against a wide range of charges, including vehicular homicides, white collar offenses, and first-degree murder. Amos has taught trial practice with the National Institute of Trial Advocacy and Gerry Spence’s Trial Lawyer’s College and been listed in ©The Best Lawyers in America since 2013. (t) (919) 967-0504; email@example.com.