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Case Law Corner: Vol. 3

Updated: Aug 3, 2023

Friday's here! OJD is coming to you live from Kinston, NC, and the Eastern NC Youth Defender Forum. Today we have a new Case Law Corner from Burcu!

NC Juvenile Case Summaries

January 1, 2022 to June 30, 2022

In re D.A.

281 N.C. App. 627, 867 S.E.2d 428 (2022)

Unpublished Opinion

Wilson County

February 1, 2022

Summary: “Dawson” attended a birthday party in which a fight broke out between two other attendees of the party. Dawson attempted to separate the girls fighting by grabbing one of the girls, McCroskey, and pulling her away, but McCroskey slapped him and elicited his comment in front of the party guests, “I’m not afraid to hit girls, I’m not afraid to hit girls, I hit girls.” Dawson then shoved McCroskey to the floor. While she was on the floor, McCroskey was kicked in the face and was injured. She did not see who kicked her but did see that the whoever kicked her was wearing white Nike Air Force 1 shoes. Only Dawson and another female were reported to be wearing white Nike Air Force 1 shoes at the party. McCroskey gave differing accounts to investigating officers as to who had kicked her, including naming Dawson at one point and a female at another. Another female, Tiffany, originally sent messages to McCroskey stating she was the one who had kicked her, but when charged with assault, recanted her statement, and named Dawson as the perpetrator. Tiffany so testified at trial, but Dawson denied kicking McCroskey and stated he did not own a pair of white Nike Air Force 1 shoes. However, Dawson testified to his willingness to retaliate if a girl were to hit him. The trial court orally adjudicated Dawson as delinquent and imposed a level 1 disposition, including an order to pay $500 in restitution to McCroskey. The trial court stated, “Now I do want him to pay an appropriate amount of restitution. I believe that State has asked for $[500.00]. I believe that’s what we can do.” The trial court did not make any further oral or written findings that Dawson had and could reasonably acquire the means to make restitution on the Disposition Order.

Issues Affecting Youth: Whether juveniles’ right against self-incrimination must be affirmatively protected by the court? Yes, it must. Whether the court must make findings that restitution is in the best interest of the juvenile and that the juvenile has the ability to pay? Yes, it must.

“NCGS §7B-2405 places ‘an affirmative duty on the trial court to protect . . . a juvenile's right against self-incrimination.’ A juvenile proceeding ‘to determine delinquency, as a result of which the juvenile may be committed to a state institution, must be regarded as 'criminal' for Fifth Amendment purposes of privilege against self-incrimination.’ As such, a juvenile's privilege against self-incrimination ‘applies in juvenile proceedings the same as in adult criminal cases.’ When informing a juvenile of his rights, Section 7B-2405 requires at least ‘some colloquy between the trial court and the juvenile to ensure that the juvenile understands his right against self-incrimination before choosing to testify at his adjudication hearing.’” (internal citations omitted)

“A trial court's order to pay restitution as a condition of probation must be supported by at least some findings of fact restitution is in a juvenile's best interest and that the juvenile can pay the restitution. While it may be assumed that it would be in a juvenile's best interest to make restitution to his victim, there is an inquiry that must be made to ensure it is actually in the juvenile's best interest based on the circumstances surrounding the juvenile and that the juvenile has the ability to comply.” (internal citations omitted)

In re L.J.J.

281 N.C. App. 721, 868 S.E.2d 176 (2022)

Unpublished Opinion

Henderson County

February 15, 2022

Summary: Juvenile was charged with Sale and Delivery of a schedule IV controlled substance. The school resource officer noticed a student “staggering” and “not acting his normal self” and questioned the student. The student identified the juvenile as having sold him three Xanax “bars.” At trial, the school resource officer described what he observed of the student who had been staggering but was not tendered as an expert. He testified that he believed the pill to be Xanax based on his training and experience. No expert testimony establishing the identity of the substance was offered.

Issues Affecting Youth: May the identity of a controlled substance be established by lay opinion testimony? No, it may not.

“[T]he burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution. Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.

. . .

However, even when inadmissible evidence is considered at the motion to dismiss stage, if the evidence is ‘sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed. This is true even though the suspicion aroused by the evidence is strong.’” (citations omitted).

In re D.K.B.

282 N.C. App. 401, 869 S.E.2d 375 (2022)

Unpublished Opinion

New Hanover County

March 15, 2022

Summary: Dean was a passenger in a vehicle that had expired tags. Law enforcement stopped the vehicle and, upon approach, recognized Dean, including law enforcement’s personal knowledge of Dean’s prior history with firearms. Law enforcement observed Dean fidgeting in a suspicious manner with a black jacket in his lap and reaching into his waistband. Dean was instructed to step out of the vehicle and law enforcement asked Dean “You got nothing on you, do you?” to which Dean responded “Yeah, I got one.” When law enforcement conducted a Terry frisk, a black handgun was found in Dean’s waistband. After adjudication, the Court ordered an interdisciplinary evaluation pursuant to the then-effective NCGS §7b-2502(c) (2019) prior to disposition. A CCA was subsequently completed by L. Bentz, a Licensed Clinical Addiction Specialist, and it covered Dean’s mental status as well as his developmental, social, trauma, work, education, behavioral, and substance abuse history. The CCA also provided a recommendation to the Court as to treatment and placement for Dean.

Issues Affecting Youth: Whether a defendant’s criminal history alone is sufficient for a Terry search? No, it is not. Whether an officer’s prior knowledge of the juvenile’s involvement with firearms combined with suspicious behavior and a statement amounting to admission of having a firearm allows for the reasonable suspicion standard needed to conduct a Terry frisk? Yes, it does. Whether a comprehensive clinical evaluation is sufficient to qualify as an interdisciplinary evaluation when completed by a licensed clinician and based upon information personally gathered by the clinician and specific treatment recommendations for the juvenile were made? Yes, it is.

“During a lawful traffic stop, ‘an officer may conduct a pat down search, for the purpose of determining whether the person is carrying a weapon, when the officer is justified in believing that the individual is armed and presently dangerous.’ Our Supreme Court has adopted the standard delineated in Terry to determine if this belief is justified— ‘whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger[.]’ The police do not need to be certain that an individual is armed but rather ‘are 'entitled to formulate common-sense conclusions about the modes or patterns of operation of certain kinds of lawbreakers' in reasoning that an individual may be armed.’ Additionally, we examine whether an officer's conclusion that a defendant ‘may have been armed and dangerous’ was reasonable within the totality of the circumstances. . . . ‘Standing alone, defendant's criminal record for which defendant has already paid his debt to society does not constitute reasonable suspicion and hence cannot singly serve as a basis for the law enforcement officer who effected the traffic stop to conduct a Terry search of the passenger compartment of defendant's vehicle.’ We extend that same principle to a Terry frisk of a defendant's person for weapons. However, where, as here, the stopping officer has personal knowledge of the individual's criminal history, the criminal history is related to the weapon believed to be on the individual's person, the criminal history is recent, and there are other factors to support reasonable suspicion, such reliance on an individual's criminal activity to formulate reasonable suspicion is permissible.” (internal citations omitted)

“N.C. Gen. Stat. § 7B-2502(c) mandates that, ‘[i]f the court believes, or if there is evidence presented to the effect that the juvenile is mentally ill or is developmentally disabled, the court shall refer the juvenile to the area mental health, developmental disabilities, and substance abuse services director for appropriate action. . . . The area mental health . . . director shall be responsible for arranging an interdisciplinary evaluation of the juvenile and mobilizing resources to meet the juvenile's needs.’ ‘Faced with any amount of evidence that a juvenile is mentally ill, a trial court has a statutory duty to refer the juvenile to the area mental health services director for appropriate action. If such evidence is identified, the interdisciplinary evaluation is required to take place prior to committing a juvenile to a youth development center as ‘the statute envisions the area mental health services director's involvement in the juvenile's disposition[.]’” (internal citations omitted).

In re J.A.D.

872 S.E.2d 374 (N.C. Ct. App. 2022)

Surry County

April 19, 2022

Summary: “Jeremy” was charged with extortion for threat of use of a partially unclothed image of a classmate to obtain items from the cafeteria and to ask the victim to do Jeremy’s math homework. The petition failed to name the victim to whom the threats were made.

Issues Affecting Youth: Must a petition for extortion specifically name the victim? No, it does not. Does the crime of extortion require that the alleged threat be one of physical violence? No, it does not. Must the trial court include the burden of proof in its written findings? Yes, it must.

“A petition in a juvenile action serves essentially the same function as an indictment in a felony prosecution and is subject to the same requirement that it aver every element of a criminal offense, with sufficient specificity that the accused is clearly apprised of the conduct for which he is being charged. When a petition is fatally deficient, it is inoperative and fails to evoke the jurisdiction of the court. It is not the function of a charging instrument to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial, and to protect the accused from being jeopardized by the State more than once for the same crime.” (internal citations omitted)

“Juvenile petitions alleging delinquency are charging instruments akin to criminal indictments. The appellate court has acknowledged the general rule that a charging instrument using either literally or substantially the language found in the statute defining the offense is facially valid, and charging instruments do not need to detail exact, specific events and evidence to distinctively plead the offense charged and avoid risks of double jeopardy. When an averment in an indictment is not necessary in charging the offense, it will be deemed to be surplusage.” (internal citations omitted)

“True threats are one indisputable category of constitutionally proscribable free speech that is not protected by the First Amendment, U.S. Const. amend. I. Using U.S. Supreme Court decisions to guide its analysis, the North Carolina Supreme Court in Taylor recognized that determining whether a defendant's speech was a true threat required our courts to balance the State's interest in protecting individuals' safety with a speaker's substantial right to engage in controversial but constitutionally permissible speech. Whether a defendant's particular statements contain a true threat is a fact-specific evaluation, in which a court must consider (1) the context in which the statement was made, (2) the nature of the language the defendant deployed, and (3) the reaction of the listeners upon hearing the statement, although no single factor is dispositive. The Court further determined that, in order to narrowly define the range of unprotected speech proscribable as true threats, the State is required to prove the speaker's intent by both an objective and a subjective element in order to convict the defendant of a true threat offense.” "(internal citations omitted)

In re M.M.G.

871 S.E.2d 417 (N.C. Ct. App. 2022)

Unpublished Opinion

Forsyth County

May 3, 2022

Summary: Mark was on probation when adjudicated delinquent on other felony charges. At disposition, the trial court was required to enter a Level 3 disposition due to Mark’s delinquency history, unless the court found special circumstances. Defense counsel offered some evidence of Mark’s extraordinary needs, but the court ultimately imposed a Level 3 disposition.

Issues Affecting Youth: Whether a trial court impose Level 2 disposition in lieu of Level 3 disposition if evidence of extraordinary needs of the child is presented. No, it does not. The finding of extraordinary needs is discretionary.

“’Based upon the delinquency history level determined pursuant to G.S. § 7B-2507, and the offense classification for the current offense, N.C. Gen. Stat. § 7B-2508 then dictates the dispositional limits available.’ Notably, ‘[a] court exercising jurisdiction over a juvenile who has been adjudicated delinquent and for whom the dispositional chart . . . prescribes a Level 3 disposition shall commit the juvenile to the Division for placement in a youth development center[.]’ ‘However, a court may impose a Level 2 disposition rather than a Level 3 disposition if the court submits written findings on the record that substantiate extraordinary needs on the part of the offending juvenile.’ (emphasis added).

Furthermore, ‘[a]lthough the trial court has discretion under N.C. Gen. Stat. § 7B-2506 . . . in determining the proper disposition for a delinquent juvenile, the trial court shall select a disposition that is designed to protect the public and to meet the needs and best interests of the juvenile[.]’ In doing so, and ‘[w]ithin the guidelines set forth in G.S. 7B-2508, the court shall select a disposition that is . . . based upon’ five factors. N.C. Gen. Stat. § 7B-2501(c) (2021). Those factors include the (1) ‘seriousness of the offense’; (2) ‘need to hold the juvenile accountable’; (3) ‘importance of protecting the public safety’; (4) ‘degree of culpability indicated by the circumstances of the particular case’; and (5) ‘rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.’” (internal citations omitted).

State v. Benitez

872 S.E.2d 160 (N.C. Ct. App. 2022)

Lee County

April 19, 2022

Summary: After a denial of his motion to suppress, defendant pled guilty to first degree murder and first appealed the denial of the motion to suppress, and later the denial of his motion for appropriate relief. The defendant was 13 years old at the time of questioning when he waived his Miranda rights and evidence was presented as to his intelligence deficits, language barriers, and other factors.

Issues Affecting Youth: Whether the court must consider the totality of the circumstances in evaluating whether a youth knowingly, willingly, and understandingly waived the juvenile’s Miranda rights. Yes, it must.

“N.C. Gen. Stat. § 7B-2101(d) includes an additional requirement before evidence of a statement by a juvenile may be admitted as evidence: Before admitting into evidence any statement resulting from custodial interrogation, the court shall find that the juvenile knowingly, willingly, and understandingly waived the juvenile's rights. N.C. Gen. Stat. § 7B-2101(d) (2007). To determine if a defendant has knowingly and voluntarily waived his or her right to remain silent, the trial court must consider the totality of the circumstances of the interrogation, and for juveniles, this analysis includes the juvenile's age, experience, education, background, and intelligence, and evaluation into whether he or she has the capacity to understand the warnings given him or her, the nature of his or her Fifth Amendment rights, and the consequences of waiving those rights. The determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.” (internal citations omitted)

State v. Conner

381 N.C. 643, 873 S.E.2d 339 (2022)

Columbus County

June 17, 2022

Summary: The North Carolina Supreme Court found that juvenile offenders who received sentences of life imprisonment with the possibility for parole, while not guaranteed parole at any point during their respective terms of incarceration, nonetheless must have the opportunity to seek an early release afforded by the prospect of parole after serving no more than forty years of incarceration. After serving forty years of incarceration for his crimes, Conner possessed the opportunity to be considered for parole; to compel him to serve a term of incarceration in excess of forty years upon the trial court's determination that he, in light of his status as a juvenile, was neither incorrigible nor irredeemable, would unconstitutionally constitute a de facto life sentence.

Issues for Youth: Whether a sentence over 40 years for an offense committed while under 18 years of age and the defendant is not found to be neither incorrigible nor irredeemable amounts to a de facto sentence of life without parole. Yes, it does.

“Because a juvenile defendant's potential future danger to society and the youngster's ability to be rehabilitated for the rest of his life cannot be meaningfully evaluated at sentencing, a judgment of life without parole denies a juvenile offender the chance to demonstrate his growth, maturity, and rehabilitation. Thus, the Supreme Court held that the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. And if a trial court imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Conner at 340.

State v. Kelliher

381 N.C. 558, 873 S.E.2d 366 (2022)

Cumberland County

June 17, 2022

Summary: The North Carolina Supreme Court found that it violates both U.S. Const. amend VIII and N.C. Const. art. I, § 27 to sentence a juvenile homicide offender who has been determined to be neither incorrigible nor irredeemable to life without parole. Any sentence that required a juvenile offender to serve more than forty years in prison before becoming eligible for parole was a de facto sentence of life without parole. Kelliher’s sentence, which required him to serve fifty years in prison before becoming eligible for parole, was a de facto sentence of life without parole under N.C. Const. art. I, § 27. Because the trial court affirmatively found that the juvenile was "neither incorrigible nor irredeemable," he could not constitutionally receive that sentence.

Issues for Youth: Whether a sentence over 40 years for an offense committed while under 18 years of age and the defendant is not found to be neither incorrigible nor irredeemable amounts to a de facto sentence of life without parole. Yes, it does.

“It violates both the Eighth Amendment, U.S. Const. amend VIII and N.C. Const. art. I, § 27 to sentence a juvenile homicide offender who has been determined to be neither incorrigible nor irredeemable to life without parole. Furthermore, any sentence or combination of sentences which, considered together, requires a juvenile offender to serve more than forty years in prison before becoming eligible for parole is a de facto sentence of life without parole within the meaning of N.C. Const. art. I, § 27 because it deprives the juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to establish a meaningful life outside of prison.” Kelliher at 369.


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