1. Criminal Law Update & Review NC Conference of Superior Court Judges November, 2004 Jessica Smith School of Government, UNC-Chapel Hill

2. Retroactivity of Blakely Crawford update Recent case potpourri

3. Retroactivity of Blakely

5. Apprendi: Any fact other than prior conviction that increases punishment beyond statutory maximum must be proved to a jury beyond a reasonable doubt.

6. Retroactivity of Blakely Lucas: To determine statutory maximum for purposes of Apprendi, assume aggravated sentence & PRL VI.

7. Retroactivity of Blakely Blakely: Statutory maximum for purposes of Apprendi is the max. a judge can impose based on jury verdict or guilty plea.

8. Retroactivity of Blakely Implications: 1. Aggravating factors 2. PRL points not based on prior conviction 3. Non-SSL misd. like DWI

9. Retroactivity of Blakely What cases are affected? (1) Future cases (2) Pending cases (3) Old cases

10. The Anti-Retroactivity Bar: If a rule is both “new” and “procedural,” it does not apply retroactively unless it is a “watershed rule of criminal procedure.”

11. Retroactivity Analysis 1. Is it a new rule? 2. Is it procedural? 3. Is it a watershed rule of criminal procedure?

12. Retroactivity Analysis 1. Is it a new rule? 2. Is it procedural? 3. Is it a watershed rule of criminal procedure? 

13. Is it a “New” Rule? First, determine when D’s conviction became final.

14. Is it a “New” Rule? Then, look at the law as it then existed and ask: Was the new rule “dictated” by precedent? Was the unlawfulness of the conviction apparent to all reasonable jurists at the time?

15. Retroactivity Analysis 1. Is it a new rule? 2. Is it procedural? 3. Is it a watershed rule of criminal procedure? 

16. Is it substantive or procedural? Substantive rules: narrow the scope of a criminal statute by interpreting its terms; or place particular conduct or persons covered by the statute beyond the State’s power to punish

17. Retroactivity Analysis 1. Is it a new rule? 2. Is it substantive or procedural? 3. Is it a watershed rule of criminal procedure? 

18. Is it a watershed rule of criminal procedure? Various formulations Gideon is the example But no rule ever held to fall within this exception

19. Retroactivity of Blakely 1. Is it a new rule? 2. Is it substantive or procedural? 3. Is it a watershed rule of criminal procedure?

20. Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely

21. Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely x

22. Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely x

23. Is Blakely a new rule? 6/26/006/24/026/24/04 ApprendiRingBlakely x

24. Is Blakely substantive or procedural? Ring has been held to be procedural

25. Is Blakely a watershed rule of criminal procedure? Ring is not

27. Crawford Update

28. Overruled Roberts “Testimonial” statements of non- testifying declarants cannot come in unless declarant is unavailable & there has been a prior opportunity to cross examine.

29. Victim’s statements to the police Forrest: non- testimonial

30. Victim’s statements to the police Forrest: non- testimonial Lewis: testimonial

31. Victim’s statements to the police Forrest: non- testimonial Lewis: testimonial Bell: testimonial

32. 911 calls Not yet decided in NC Around the nation...

33. Excited Utterances Forrest? Around the nation...

34. Statements of Child Victims/Child Witnesses To police officers

35. Statements of Child Victims/Child Witnesses To police officers To social workers

36. Statements of Child Victims/Child Witnesses To police officers To social workers To medical personnel

37. Statements to Family & Friends It’s unanimous! They’re non- testimonial

38. Forfeiture by Wrongdoing Cases involving act separate from the crime Bootstrapping cases

39. Statements Offered for Purpose Other than Truth of Matter Asserted Clark Around the nation...

40. Availability for Cross- Examination Assertion of privilege Forgetful witness

41. Availability for Cross- Examination Assertion of privilege Forgetful witness Judge’s restrictions

42. Unavailability Clark Bell

43. Crawford Retroactivity New rule? Procedural? Watershed?

44. New Case Potpourri Hiibel v. Sixth Jud. District Court of Nev. (US S.Ct. p. 1)

45. New Case Potpourri Hiibel v. Sixth Jud. District Court of Nev. (US S.Ct. p. 1) Law requiring disclosure of name consistent with 4th Amend. Conviction did not violate privilege against compelled self-incrimination

47. US v. Patane (U.S. S.Ct. p. 2) Facts: -After arrest, Officer starts to give warnings but D interrupts, saying he knows his rights -Officer asks about a gun, D admits he has one & consents to allow officers to get it

48. US v. Patane (U.S. S.Ct. p. 2) Held: Failure to give Miranda warnings didn’t require suppression of firearm obtained as a result of D’s unwarned but voluntary statement

49. Missouri v. Seibert (U.S. S.Ct. p. 2) Facts: -D arrested -Officer intentionally fails to give warnings & gets a confession -Gives D a break, gives warnings & gets 2 nd confession

50. Missouri v. Seibert (U.S. S.Ct. p. 2) Held: When an officer as part of interrogation technique deliberately fails to give Miranda warnings, gets a confession & then gives warnings & gets another confession, neither confession is admissible

51. Yarborough v. Alvarado (U.S. S.Ct. p. 3)

52. D’s age or inexperience with law enforcement are not factors in determining whether custody exists under Miranda Test is objective

53. New Case Potpourri—NC Cases State v. Jones (NC 6/25/04): possession of cocaine is a felony

54. New Case Potpourri State v. Garcia (NC 6/25/04): D was not in custody under Miranda to require Miranda warnings

55. New Case Potpourri State v. Gonzales (NC App. 6/1/04): Weight of marijuana determined @ time of seizure, including moisture

56. New Case Potpourri Howerton v. Arai Helmet (NC 6/25/04): Court declines to adopt Daubert