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Request for appointed lawyer not self-incrimination

A young man convicted of statutory rape and child abduction is entitled to a new trial because a Pitt County judge wrongly allowed prosecutors to use his application for a court-appointed lawyer as self-incriminating evidence, the North Carolina Court of Appeals has ruled.

The Nov. 21 decision in State v. Raul Diaz  answers a question of first impression and makes it clear that the state’s use of an affidavit of indigency against a defendant is a constitutional rights violation.

Diaz’s appellate attorney, Marilyn Ozer of Massengale & Ozer in Chapel Hill, said the decision “was a correct application of the constitutional law, especially in this case.”

That’s because Diaz initially had a private attorney and was indicted before he filed an affidavit of indigency, which prosecutors apparently used to prove the elements of statutory rape and child abduction.

The state had to show that the victim was at least four years younger than Diaz to secure the abduction conviction, while statutory rape requires proof that the defendant is more than four years and less than six years older than the victim.

Diaz was 19 when he began having sex with a 14-year-old freshman at his high school, where he was a senior, according to prosecutors. Diaz, who allegedly video recorded their sexual activity, was arrested after he and the girl ran off to New Mexico and later tried to settle in Oklahoma.  

During his trial, Diaz objected when prosecutors moved to admit his affidavit of indigency into evidence, because it included his date of birth and revealed that he was under a secured bond of $500,000. He argued that the first detail violated his right against self-incrimination while the latter violated his right to a fair trial.

Pitt County Superior Court Judge Jeffery Foster overruled Diaz’s objection. But Diaz failed to obtain a ruling from Foster on the constitutional issues he later raised on appeal, which led the Court of Appeals to find that his arguments were not properly preserved.

Still, the court exercised its discretion to hear the issues for the first time on appeal “in order to avoid the possibility of a manifest injustice,” Judge Hunter Murphy wrote in the opinion. He rejected Diaz’s fair trial argument, but agreed that the state should not have used Diaz’s application for a lawyer to prove his age to the jury.

“The State may not condition one constitutional right upon the violation of another,” he wrote in the opening line of the decision. “Thus, a defendant cannot be required to make a sworn statement asserting his date of birth in his affidavit of indigency and the State use this evidence against him later to prove elements of the alleged crimes.”

Diaz had been serving a five- to 11-year sentence for three counts of statutory rape and child abduction. He’ll get a new trial on those charges. But he also was convicted of four counts of second-degree sexual exploitation and received suspended sentences on those convictions, which the appellate court upheld.

Laura Brewer, a spokeswoman for the North Carolina Department of Justice, wrote in an email that the state Attorney General’s Office “is reviewing the decision and working to determine [its] next steps.”

Jeff Welty, an associate professor of public law at the UNC School of Government, said an affirmation of Foster’s ruling against Diaz might have paved the way for prosecutors to use affidavits of indigency as tools of self-incrimination in other cases, including those without age-related elements.

For instance, he said prosecutors might want a jury to know about a defendant’s income level as a way to suggest a motive for a property crime.

“You can imagine other circumstances where it might be useful,” added Welty. He also serves as director of the North Carolina Judicial College, which trains the state’s judges, magistrates and clerks of court.

But in considering the case at hand, Welty doubted prosecutors would have a tough time proving Diaz’s age during the retrial.

“It seems more likely that it might be a victory in the short term rather than the long term,” he said.

The 17-page decision is State v. Diaz (Lawyers Weekly No. 011-362-17). An opinion digest is available at

Follow Phillip Bantz on Twitter @NCLWBantz

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