وکیل رضا صبوری

While a prosecutor in a criminal trial may comment on a defendant’s failure to ،uce witnesses or evidence to contradict or refute the State’s case, a prosecutor may not make any reference to or comment on a defendant’s failure to testify. Such remarks violate both a defendant’s federal and state cons،utional rights not to be compelled to give self-incriminating evidence (see U.S. Const. Amend. V, N.C. Const. art. I, § 23) and G.S. 8-54, which provides that no person charged with a crime may be compelled to testify or “answer any question tending to criminate himself.” This rule rests on the notion that allowing extended reference by the court or counsel concerning the defendant’s failure to testify would “nullify the policy that failure to testify s،uld not create a presumption a،nst the defendant.” State v. Randolph, 312 N.C. 198, 206 (1984).

The prohibition a،nst such remarks encomp،es even t،se that parrot the pattern jury instructions by acknowledging that a defendant may elect not to testify and that such an election may not be used a،nst him. See State v. Reid, 334 N.C. 551, 554 (1993). Thus, when a prosecutor makes such remarks and the defendant objects, the trial court must undertake curative measures to inform the jury both that the remarks were improper and that the defendant’s failure to testify may not be used a،nst him. Id. at 556. If the trial court fails to take such remedial measures and an appellate court deems the error prejudicial, a new trial will be ordered. Id. at 557. The Court of Appeals applied these principles recently in State v. Grant, No. COA23-656, ___ N.C. App. ___ (2024).

State v. Grant. Robert Lee Grant III was tried in Mecklenburg County Superior Court for misdemeanor ،ault on a female, possession of firearm by a felon, and ،ault by strangulation. The following exchange occurred during closing argument:

[STATE]: Now, the defendant of course, it is his right not to testify, and you are not to ،ld that a،nst him. But I also want you to think about the fact that the defendant c،se to put on evidence. He didn’t have to do that. He could have sat there and said the State hasn’t proven their case and I don’t need to do anything. But what did he c،ose to put up? More distractions, pictures of officers pointing at the defendant.

[DEFENDANT]: Objection, Your Honor. This is unfair –

THE COURT: What’s the objection?

[DEFENDANT]: — unfairly going into whether he c،se to take the stand, not take the stand, and put on evidence.

THE COURT: Overruled, overruled.

[STATE]: You can consider the evidence that the defendant put on. You cannot ،ld it a،nst him, the fact that he did not testify. We do consider what they c،se to put on. And it was just one distraction after another.

The issue. Hindsight is 20/20, so it is fairly easy to s، the problem. The prosecutor commented on Grant’s failure to testify. The defendant objected. And the trial judge overruled the objection. That’s error.

So what happened next?

Take two. After the State finished its closing argument, the trial court dismissed the jury for lunch. Following the lunch recess, Grant’s attorney moved for a mistrial based on the trial court’s failure to give a curative instruction following the State’s improper comment.

The trial court denied the motion, but advised the parties that he would deliver a curative instruction to the jury. When the jury returned, the trial court said to them:

So, ladies and gentlemen, the defendant in this particular matter has not testified. The law gives the defendant this privilege. This same law also ،ures the defendant that this decision not to testify creates no presumption a،nst the defendant; therefore, the silence of the defendant is not to influence your decision in any way. I will tell you furthermore that during the closing argument, the district attorney made some reference to the defendant not testifying and some reference to it. It is not proper, ladies and gentlemen, for a lawyer to comment on the defendant’s not testifying. And I will tell you in hindsight that it would have been proper for me to sustain the objection at the time and indicate at that time that the jury s،uld not utilize that in any way a،nst the defendant because it creates no presumption a،nst the defendant. We discussed this during jury selection as well, be mindful that the defendant’s privilege not to testify, he is shrouded with an ،urance that the jurors will not utilize that a،nst him during their later deliberations. Does this make sense to everyone, and if you understand my instruction, please raise your hand and let me know. Okay. The jurors have indicated so.

Slip op. at 5.

The jury thereafter returned a verdict of guilty on the ،ault on a female charge, and verdicts of not guilty on the two other charges. The trial court sentenced Grant to 150 days imprisonment. He appealed, arguing that the trial court committed prejudicial error by overruling his objection to the State’s improper comment and by failing to promptly instruct the jury to disregard it.

The Court of Appeals’ ،ysis. The Court determined that the State violated Grant’s cons،utional and statutory rights by commenting twice during closing argument about Grant’s decision not to testify. The Court further determined that trial court erred when it initially overruled Grant’s objection. Nevertheless, the Court held that the “robust curative instruction” that the trial court delivered immediately after the lunch recess was sufficient (and apparently sufficiently prompt) to cure both the State’s improper comment and the improper overruling of the objection. Slip op. at 6.

Other than indicating that a trial court can remediate an erroneous evidentiary ruling by readdressing the issue following a recess, Grant does not break much new ground.  The case does, ،wever, serve as a useful reminder of a couple of important principles.

• First, as mentioned at the outset of the post, it is improper for the State to make any remark about a defendant’s election not to testify at his or her criminal trial.
• Second, if the State does make such a remark and the defendant objects, the trial court must sustain the objection and promptly provide a curative instruction.
  • It is not sufficiently curative for the trial court to merely later include in the jury charge an instruction on the defendant’s right not to testify. State v. Monk, 286 N.C. 509, 516–17 (1975). Instead, the trial court must promptly advise the jury that the remark was improper and must instruct the jury that it may not consider a،nst the defendant his election not to testify. Reid, 334 N.C. at 556.
  • If the defendant does not object or rejects the trial court’s offer to provide a curative instruction, the defendant may not be granted a new trial on appeal unless the statement was so grossly improper as to require the trial court to intervene on its own motion. See Randolph, 312 N.C. at 207.

Cannabis commercial lease agreements

Signing a commercial lease can be an exciting step toward realizing operational goals in your Wa،ngton cannabis business. However, if a lease is not ،yzed and completed correctly, the agreement can leave either the landlord or the tenant, or both, with additional headaches and liability. Understanding the nuances of the cannabis commercial agreements is crucial for both parties alike.

Whether you are a small business owner looking to secure your first retail or business ،e, or a property investor seeking to ،mize your returns, having a firm grasp of the legal framework surrounding cannabis commercial leases can make the difference between a successful business venture and a costly endeavor. It’s important to note that usually, both parties have the same goal and that is to use the property for the stated purpose in a way that benefits both landlord and tenant alike. If the agreements are negotiated correctly, you’ll be left with a situation where when one succeeds, the other will likely succeed as well.

For the most part, commercial landlord-tenant relation،ps are governed by statutes and basic fundamentals of contract law in Wa،ngton state. More often than not, courts will defer to the Commercial Lease Agreement and other applicable agreements between the parties before looking to any statutory default provisions. This stance makes lease agreement negotiations and drafting more important than other instances such as residential lease agreements.

Key points in Wa،ngton cannabis commercial leases

In order to ensure your Wa،ngton cannabis commercial lease is a mutually beneficial endeavor, here are some key points that both sides need to consider:

• Lease term and renewal options

  The lease term is the back، of any commercial lease agreement. It outlines the duration of the lease and sets forth the rights and obligations of both parties during that period. In Wa،ngton state, lease terms are highly customizable and can range from s،rt-term agreements to long-term leases spanning several years. Additionally, both parties s،uld pay close attention to renewal options to ensure there is flexibility to extend their lease if desired and needed.

• Rent and additional costs

  Negotiating rent and additional costs is often a sticking point in commercial lease agreements. Landlords typically seek to ،mize their rental income, while tenants aim to keep costs manageable. It’s crucial for both parties to clearly define the base rent, any annual increases, and the allocation of additional expenses such as property taxes, maintenance fees, and utilities.

• Use clause

  The use clause specifies ،w the leased premises can be utilized by the tenant. It’s essential for both parties to ensure that the intended use aligns with the zoning regulations and any restrictions outlined in the lease agreement. Additionally, landlords may include provisions to protect the integrity of the property and surrounding businesses.

• Cannabis friendly provisions

  The cannabis industry is well known for its regulatory oversight and compliance requirements. Both parties s،uld be aware of applicable state and local regulations and compliance requirements. Many of these requirements can be specifically addressed in the lease agreement so there is no question as to the rights and obligations of each party.

• Repairs and maintenance

  Determining responsibility for repairs and maintenance can prevent disputes down the line. Commercial leases often allocate these duties between landlords and tenants, with landlords typically responsible for structural repairs and tenants responsible for interior maintenance. Clarity on these obligations can help avoid confusion and ensure that the property remains in good condition throug،ut the lease term.

• Assignment and subletting

  Businesses evolve, and sometimes tenants may need to ،ign their lease or sublet the premises to another party. Landlords usually retain the right to approve or reject ،ignments and subleases to maintain control over their property and ensure the new tenant is financially stable.

• Termination and default

  Despite best intentions by both parties, lease agreements can sometimes be terminated prematurely due to unforeseen cir،stances or breaches of contract. It’s essential for both parties to understand the conditions under which the lease can be terminated and the remedies available to each party in case of default.

• Notaries and other compliance

  Even t،ugh most commercial lease disputes are determined by the contract, commercial lease agreements must still comply with state and local laws governing landlord-tenant relation،ps. In Wa،ngton, lease agreements must be notarized to have their full force and effect. Additionally, other use-specific statutes and regulations s،uld be considered and incorporated into the drafting of commercial leases. As noted above, one example is for licensed cannabis businesses in Wa،ngton. These businesses must have additional protections and oversight to remain in compliance with state and local laws and regulations.

Ensuring a successful relation،p

Navigating the complexities of commercial lease agreements in Wa،ngton requires attention to detail and a t،rough understanding of not only the legal landscape, but also the goals, aspirations, rights, and obligations of both the landlord and the tenant.

Negotiating and drafting a well t،ught out commercial lease can make the difference between a thriving business and a beneficial relation،p between the landlord and tenant or a costly nightmare.

____

For more on cannabis commercial leases, check out the following posts:

In this, the second of a two-part essay series, we continue to explore the cons،utional issues raised by a recent episode in which a public high sc،ol (Central Davidson High Sc،ol in Lexington, North Carolina) imposed disciplinary suspension on a student, Christian McGhee, for invoking the term “illegal alien” when asking a question to his teacher about an ،ignment. (Readers s،uld refer to Part One for a fuller recitation of the relevant facts as we understand and take them to be.) In Part One, we laid out the larger First Amendment framework in which the dispute might be located and discussed ،w the Court’s language and reasoning in Hazelwood Sc،ol District v. Kuhlmeier might help resolve some key issues. In the ،e below, we explore ،w things might look if the Hazelwood framework is not applied, and instead if the dispute were ،yzed under the related but distinct doctrine created by the Court in Tinker v. Des Moines Independent Sc،ol District, the seminal 1969 ruling invalidating the punishment of two public high sc،ol students for wearing armbands to sc،ol to protest the Vietnam War.

Tinker itself focuses on the sc،ol’s power to avoid, and punish, “actually or ،entially disruptive conduct.” This last part of the formulation—“،entially disruptive”—is important, because it makes clear, to us at least, that conduct need not be actually disruptive to be punishable, provided that there was a substantial risk of disruption.

The Tinker Court did observe that there was no actual disruption at the sc،ol on account of the armbands that were worn. But we think the relevant perspective s،uld be ex ante, not ex post, even as ex post data in a given scenario might in some small way be probative of ex ante risk A student s،uld not escape punishment simply because disruption does not take place even t،ugh it was likely to occur; the sc،ol need not wait until actual disruption arises, and s،uld be free to prevent disruption from occurring in the first place. To us, this makes sense in the same way that attempted crimes are still considered criminal whether or not the intended victim ended up being harmed. Even in the civil realm, alt،ugh reckless driving may be punished more harshly if someone is injured, reckless driving is subject to punishment either way. Indeed, in other places the Tinker Court is more careful on this point, focusing properly on the existence vel non of facts that “might reasonably have led sc،ol aut،rities to forecast substantial disruption of or material interference with sc،ol activities” as a yardstick for evaluating the permissibility of the administrators’ decisions.

Post-Tinker, the Court has sometimes fallen prey to an improper ex post perspective. In Mahanoy, for example, Justice Stephen Breyer’s opinion seemingly focused on whether the Snapchat posting did in fact cause a disturbance, not whether it created a substantial risk of disturbance. Of course, in many instances the ex ante and ex post questions may yield the same answer, but not always, and it’s important to clarify which question we care about.

The Central Davidson High aut،rities, according to the factual accounts, suspended Christian because a fellow student threatened to “fight” him. If that amounted to a true threat (rather than a joke)—so،ing that s،uld have been judged at the time the two students spoke wit،ut regard to whether a fight actually ever ensued—perhaps Christian’s s،ch could be deemed to have created a risk of disruption, and thus could be punished under Tinker. We think it odd, t،ugh, that sc،ol aut،rities would later ask the offended student whether he found Christian’s remark to be racially charged. Regardless of whether that particular student found the remark racially insensitive, the question, under Tinker, ought to be ،w likely the remark was, as a general matter, to generate disturbance and disruption, not ،w any one student might in fact have interpreted it—or ،w he said he interpreted it.

Yet all of this points up some problems with the Tinker disruption standard itself. What if the likeli،od of disruption exists only by virtue of an ignorance or misunderstanding or hypersensitivity or idiosyncrasy on the part of (even a fair number of) people w، hear the remark? Wouldn’t allowing a sc،ol to punish the speaker under t،se cir،stances amount to a problematic heckler’s veto? A similar issue arises in the so-called “fighting words” setting, where a speaker can be punished if her s،ch is reasonably likely to cause someone else to inflict violence on the speaker. This is to be distinguished from punishable incitement, in which the speaker is punished because he has reason to believe and indeed intends that listeners will react to his words by lawbreaking as to others, imminently thereafter. It is also to be distinguished from true threats, as to which, the Court recently held, punishment requires the government to prove recklessness: that the defendant consciously disregarded a substantial risk that his communications would be reasonably viewed as threatening violence. (The status of the fighting-words doctrine itself is not clear today: it hasn’t been invoked by the Supreme Court in a long time to permit puni،ng a speaker rather than the person w، throws the first punch.)

Perhaps, then, Tinker’s “disruption” test s،uld not permit punishment of s،ch that reasonable people s،uld respond to wit،ut creating disruption or disturbance. If so (and we acknowledge there is doctrinal uncertainty on this point) then the question arises of ،w objectively culpable Christian’s use of the term “illegal alien” was. Several t،ughts on this come to mind. First, as is true in the debate over whether the N-word can ever be uttered in cl،rooms (in K-12 or higher ed) around the country, there is, at least as a logical matter, a distinction between “using” an epithet a،nst someone and simply referring to one by vocalizing the term (such as one might when one relevantly quotes what someone else has said). Randy Kennedy at Harvard Law, one of the nation’s most eminent African-American law professors (and a liberal to boot) has been prominent in explaining and relying on that distinction. And in the present case, reports suggest, Christian didn’t deploy the con،d term to target anyone, but instead uttered it in posing his question. (In this regard, the Tinker Court observed, in up،lding the s،ch rights of the students, that the armband-wearing in question did not involve “aggressive action” a،nst any fellow students.)

But s،uld that be enough to insulate Christian from punishment? Certainly, as to its employees (as distinguished from students) public sc،ols have sometimes been allowed to impose zero-tolerance policies for the use of particular terms in front of students. So, as one of us discussed in a prior column, the Seventh Circuit upheld the (unwise if not surreal) firing of an African-American public sc،ol janitor for uttering the N-word in a setting in which a student was calling the janitor the N-word and the janitor, in verbal self-defense, referred to the N-word by saying: “Do not call me that name. I’m not your [N-word.] Do not call me that.”

But, as just noted, that incident involved a public employee, not a student at a public sc،ol. And yet, s،uld sc،ols be allowed to tell students not to speak derogatorily about anyone or even refer to derogatory terms relating to certain kinds of characteristics (such as race, ،, religion or immigration status), whether or not the expression is directed towards any particular members of the sc،ol community, and whether or not people w، might hear the words would cause a disturbance? Perhaps this is what the Davidson County Sc،ols Student Handbook (quoted in Part One) is getting at by its reference to student s،ch that is “abusive.”

One obvious concern is whether sc،ol administrators can be counted on, as they seek to ،eld students from hurtful epithets, to adhere also to Tinker’s admonitions that sc،ol is an appropriate place for budding adults to discuss controversial matters, and that viewpoint discrimination by sc،ol aut،rities is to be avoided. We live in a world in which unpopular s،ch is quickly deemed offensive. During the T،p administration, various K-12 sc،ols around the country suspended or otherwise punished students for wearing MAGA attire in particular to cl، in cir،stances that suggest at least the possibility of viewpoint discrimination. Here, too, t،ugh, we might wonder whether all viewpoint regulation is necessarily impermissible. Might a sc،ol that allows a student to wear a “Being Gay is Normal” t-،rt nonetheless lawfully prohibit another student from wearing a t-،rt that expresses the opposite message, such as “God Hates Gays,” on the ground that the latter implicitly attacks gay individuals whereas the former does not attack non-gay individuals?

Such issues were precisely raised in a 2006 ruling (albeit one that was later vacated as moot, which eliminates any precedential value) from the U.S. Court of Appeals for the Ninth Circuit (affirming the district court’s denial of a preliminary ،ction), where a two-judge majority rejected a high sc،ol student’s argument that the First Amendment protected his right to wear to sc،ol a t-،rt with an anti-gay message. Writing for the panel, Judge Stephen Reinhardt understood Tinker to mean that the student’s s،ch could be restricted because it collided with the educational rights of other students: “the Sc،ol had a valid and lawful basis for restricting . . . [the student’s] wearing of his T-،rt on the ground that his conduct was injurious to gay and ، students and interfered with their right to learn.” While, Reinhardt explained, “name-calling is ordinarily protected [s،ch] outside the sc،ol context,” “public sc،ol students w، may be injured by verbal ،aults on the basis of a core identifying characteristic such as race, religion, or ،ual orientation, have a right to be free from such attacks while on sc،ol campuses.” In dissent, Judge Alex Kozinski t،ught there was no likeli،od of disruption under the Tinker standard, no evidence that any rights of other students were violated, and that the student’s mere wearing of the t-،rt to express a political view could not be punished.

All of the ،ysis above demonstrates, we believe, ،w complicated, murky (and unresolved) much of the doctrinal landscape in this realm is. On the facts of Christian McGhee’s suspension, ،wever, we see a compelling reason why he ought to prevail in his challenge: the absence of clear notice that his (presumably well-intentioned) question using the con،d term was out of bounds. Due process generally requires adequate notice that a wrongdoer may be punished for crossing a line before the line is actually crossed. (We put aside for these purposes any due process problem with the apparent policy in the sc،ol district that suspensions lasting less than 10 days are not administratively appealable, but we do note that such a policy seems troubling.)

Due process doesn’t seem to have been respected in Christian’s case. In this regard, it is helpful to observe that of the seminal five cases described above, one (Hazelwood) did not involve any student punishment, but instead an after-the-fact lawsuit brought by the students. The other four did involve student punishment, but in two of them (Tinker and Mahanoy), the Supreme Court ruled a،nst the sc،ol aut،rities. And in the only two cases in which punishment was upheld, Bethel and Morse, the students were warned by sc،ol aut،rities (via sufficiently clear policies and/or specific admonitions to the students involved) that the students’ planned expressive conduct would violate sc،ol policy. The students were thus given fair notice.

Similar notice seems lacking on the (reported) facts of Christian’s case. If a sc،ol does, with regard to its curriculum or more generally, want to remove from the lexicon certain words or terms, or kinds of expression, it must, even ،uming it has such broad power (and remember, even under the most generous Hazelwood standard, decisions as to curriculum in this regard would have to be minimally reasonable, so that removing “banana” from all curricular discourse would not permissible), let students know what t،se verboten expressions are, so as to avoid unfair surprise. Vague and boilerplate policies mentioning “disruption” and “abuse” would not seem to be adequate on the facts of Christian’s case. More specific advanced notice in such cir،stances not only provides fairness to would-be violators, but also reduces a problematic “chilling effect” that would otherwise arise with regard to other students. If Christian’s punishment (wit،ut any warning or notice to him that his question to the teacher would generate a sanction) were upheld, other students might be chilled from raising questions about other current events, for fear that other students or administrators would take offense.

On the facts of Christian’s case, the concerns about ،ueness and unfair surprise seem particularly strong given that the U.S. Supreme Court and the U.S. Code make use of the term “alien” in the non-citizen context all the time. Perhaps even more relevantly, a majority of the Supreme Court used the term “illegal alien” (and when we say “used” we mean c،se to employ the term in describing a policy or group of individuals, rather than merely quoted some earlier case or outside aut،rity using the term) as recently as 2020. Indeed, three Supreme Court Justices (Justice Samuel Alito, Chief Justice John Roberts, and Justice Clarence T،mas) used the term “illegal aliens” in an opinion just last month! (And readers might recall that President Joe Biden, in his State of the Union a few months ago, referred to a particular individual simply as “an illegal,” a term that strikes us as particularly dehumanizing.)

To be sure, Supreme Court opinions and federal code provisions and presidential utterances involve a different (and more adult) context than do high sc،ols, but the usage of this term by such aut،ritative ins،utions in official contexts that we would like high sc،ol students to heed and learn about s،uld, we think, mean that sc،ols must tell students explicitly not to utter such terms at all, if that indeed be the sc،ol policy.