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Higher Level Felony Defense at the SOG

Last week I had the pleasure of hosting around 40 attorneys for the second part of a new course, Higher Level Felony Defense. The first part, held in early 2018, focused primarily on preparing a case for trial. We also included a deep dive into jury selection. This second part focused on common issues in serious felony cases as well on sentencing advocacy. As a new program, I’m sure it will evolve, but I thought the first iteration was promising and wanted to talk briefly about the program and our goals.

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The Legality of CBD: Caveat Emptor

Chances are you’ve heard of CBD products. Many cities around North Carolina have stores specializing in CBD products, and it’s widely available online and in ‘vape’ shops. It’s marketed for its health benefits and is touted as a safe and legal (if largely unregulated) treatment for a variety of conditions, from depression to inflammation to cancer and acne. I was recently asked to look at the law surrounding CBD products, and this post summarizes what I found.

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State v. Osborne: Another Wrinkle in Drug ID

Back in February, I blogged about State v. Bridges, ___ N.C. App. ___, 810 S.E.2d 365 (Feb. 6, 2018), and drug identification. In short, Bridges held that the defendant’s out-of-court admission to an officer that a substance was “meth” was sufficient to meet the State’s burden of proving the identity of the substance, at least where the defendant failed to object to the testimony. This decision arguably signified an expansion of the Nabors exception to the Ward rule that a chemical analysis is generally required to establish drug identity (subject to other exceptions covered in the post). For a more thorough review of the topic, see that previous post. The Court of Appeals recently decided another drug ID case, State v. Osborne, ___ N.C. App. ___ (October 2, 2018), adding a new wrinkle to the rules.

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Self-defense, Intent to Kill and the Duty to Retreat

Consider the following scenario: Driver Dan is traveling down a dark county two-lane road in his sedan. Traffic is light but slow due to the cold weather and mist. Another driver in a truck appears behind Dan and starts tailgating him, getting within a few feet of his bumper. After unsuccessfully trying to pass Dan, the other driver begins tailgating Dan even more, now staying within inches of his bumper. When the cars ahead turn off and the road is clear,  slows to let the other driver pass, but the other driver continues closely riding Dan’s bumper for several miles, flashing high beams at times. Eventually, the other driver pulls alongside Dan and begins “pacing” him, staying beside Dan’s car instead of passing. The other driver then begins to veer into Dan’s lane, forcing Dan’s passenger-side tires off the road. As Dan feels the steering wheel begin to shake, he fears losing control of his car and decides to defend himself with his (lawfully possessed) pistol. He aims through his open window at the other driver’s front tire and shoots, striking it and halting the other vehicle. The other driver stops without further incident, and Dan leaves. Dan is eventually charged with shooting into an occupied and operating vehicle, a class D felony and general intent crime.

Pop quiz: taking the evidence in the light most favorable to the defendant, is Dan entitled to a self-defense instruction?

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Vote here, and then read on for the answer.

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Court of Appeals Approves Justification Defense for Firearm by Felon

For several years now, it has been an open question in North Carolina whether a justification defense to possession of firearm by felon is available. John Rubin blogged about the issue back in 2016, here. Our courts have assumed without deciding that the defense might apply in several cases but have never squarely held the defense was available, finding instead in each previous case that defendants didn’t meet the admittedly rigorous standards for the defense. This month, the Court of Appeals unanimously decided the issue in favor of the defendant. In State v. Mercer, ___ N.C. App. ___ (August 7, 2018), the court found prejudicial error in the trial judge’s refusal to instruct the jury on justification in a firearm by felon case and granted a new trial. Read on for more details.

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Does a Stipulation to Lab Results Waive Confrontation Rights?

Defendants can lose confrontation rights a number of ways. Under the various notice and demand statutes, failure to object and demand the presence of the witness in a timely manner following receipt of the State’s notice results in waiver of the right to personally confront the witness. See, e.g., G.S. 90-95(g); G.S. 20-139.1(e1) (among others). A defendant can also forfeit his or her right to confrontation by wrongdoing—where the State can prove that the defendant’s conduct resulted in the unavailability of a witness, the defendant loses the right to confront that witness. Giles v. California, 554 U.S. 353 (2005). Stipulations to the admissibility of evidence, the subject of today’s post, are another form of waiver. When the defendant stipulates to a lab result, the right to personally confront the analyst is lost. What process is due before the judge accepts such a stipulation? Is the stipulation itself sufficient to waive confrontation rights? Or should the trial judge personally engage the defendant to ensure the waiver of confrontation rights is knowing and voluntary before accepting the stipulation? The Court of Appeals answered that question in a recent case.

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Structural Errors

Often, when the defendant complains on appeal of a constitutional violation at trial, there must be some showing of prejudice in order for the defendant to obtain relief. Even if a defendant shows that a violation occurred, the State usually has an opportunity to demonstrate that the error is harmless beyond a reasonable doubt. If the error is unlikely to have affected the result within the greater context of the trial, the defendant is not entitled to relief under harmless error review. Chapman v. California, 386 U.S. 18 (1967). Some errors, however, are deemed so serious and capable of affecting the fundamental integrity of the trial that harmless error review does not apply. These types of “structural” errors typically entitle the defendant to a new trial without any showing of prejudice and without regard to how the error may have affected the verdict.

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N.C. Supreme Court Issues New Rule 412 Opinion

Back in April 2017, I blogged about State v. Jacobs, ___ N.C. App. ___, 798 S.E.2d 532 (March 12, 2017) here. That post focused on the preservation aspect of the case—the defendant failed to preserve a constitutional challenge to the trial court’s exclusion of evidence in a sexual assault prosecution. The alleged victim, the defendant’s minor daughter, had two sexually-transmitted diseases (“STDs”) that the defendant did not. The defendant wished to present expert testimony about the different test results. The trial court excluded the evidence under Rule 412, the rape shield rule, and the Court of Appeals unanimously affirmed. Because no constitutional challenge to the ruling was made at trial, the Court of Appeals refused to consider the argument that the exclusion of the STD evidence violated the defendant’s right to present a defense. In a 6 to 1 opinion, the N.C. Supreme Court reversed the Court of Appeals on the Rule 412 issue early last month, granting the defendant a new trial. State v. Jacobs, ___ N.C. ___, 811 S.E.2d 579 (April 6, 2018). Today’s post summarizes the Supreme Court decision, which adds a new wrinkle to the application of Rule 412 in rape and sexual offense cases.

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Shhhh! Whisper Stops and U.S. v. Bowman

I recently summarized a Fourth Circuit traffic stop case arising out of western North Carolina, U.S. v. Bowman, 884 F.3d 200 (4th Cir. 2018). It’s an interesting case in its own right as an application of U.S. v. Rodriguez, 135 S. Ct. 1609 (2015) (holding that extensions of a traffic stop must be supported by reasonable suspicion). In short, the Fourth Circuit reversed the trial court’s denial of the defendant’s motion to suppress, finding that the trooper lacked reasonable suspicion to extend the stop after the traffic stop was completed and vacating the defendant’s drug conviction. There are interesting issues in the case about when a seizure occurs and about whether the defendant consented to the extension of the stop, and readers are encouraged to check out the case, or at least the summary here (you can read all of the Fourth Circuit case updates here).

What caught my eye about it was a footnote in the opinion. Before the state trooper encountered the defendant, the Drug Enforcement Administration (“DEA”) passed along a tip to the local authorities in N.C. that the defendant’s vehicle was suspected of trafficking meth. That tip provided the vehicle’s license plate number and a description (“a red, older model Lexus”). According to the footnote, “The government agrees that the DEA tip should not be considered in any way in our legal analysis.” Slip op. at 3 n.1. Why would that be? After some digging and help from attorneys in the Charlotte Office of Federal Public Defender (thanks again to Ann Hester, Kevin Tate, and Mary Ellen Coleman from that office for talking about the case with me), I was able to determine that this was an instance of a so-called “whisper” stop. Although not exactly a new practice, its application in the digital age raises interesting questions. The tip aspect of the case is not discussed in Bowman beyond the brief mention in the footnote, but the case is a clear sign that the practice is occurring in North Carolina and elsewhere, so I wanted to cover it in today’s post.

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