Phil Dixon, Author at North Carolina Criminal Law

Robbery and the Claim of Right Defense

March 19, 2019 Phil Dixon

James gives his friend Angela some money to purchase drugs. Angela doesn’t get the drugs and doesn’t return the money. James then comes to Angela’s house to confront her and get his money back, barging into the house and threatening her with a gun. James ultimately leaves without any money but is soon charged with attempted armed robbery. He testifies at trial that he had no intent to commit robbery; he was simply trying to get his property back. Angela admits on the stand that she had the money and never returned it or bought the drugs. James moves to dismiss, arguing that the State’s evidence is insufficient to establish any felonious intent—because he had a legitimate claim to the property, he couldn’t have committed robbery.

Loading ...

Cast your vote, and read on for the answer.

The Dr. Jeffrey MacDonald Habeas Case and Actual Innocence

February 19, 2019February 19, 2019 Phil Dixon

Back in December, the Fourth Circuit ruled on a habeas petition of Dr. Jeffrey MacDonald, denying relief. The case has been winding its way through federal courts for more than 40 years. I wanted to flag it for readers in this post, both as one of the more notorious North Carolina murder cases and as an opportunity to examine the legal principles of actual innocence claims in federal habeas. Fair warning, this post contains some minimal (but grisly) details of the killings.

Higher Level Felony Defense at the SOG

January 15, 2019 Phil Dixon

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.

Can Solicitation Become Attempt?

June 6, 2019December 18, 2018 Phil Dixon

That in effect was the question presented in the recent N.C. Supreme Court decision in State v. Melton (Dec. 7, 2018), where the court vacated an attempted murder conviction in a murder-for-hire case. Before getting into the case, let’s review the elements of solicitation and attempt.

The Legality of CBD: Caveat Emptor

January 14, 2019November 20, 2018 Phil Dixon

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.

State v. Osborne: Another Wrinkle in Drug ID

August 18, 2019October 16, 2018 Phil Dixon

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.

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

September 18, 2018 Phil Dixon

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.

Loading ...

Vote here, and then read on for the answer.

Court of Appeals Approves Justification Defense for Firearm by Felon

August 21, 2018 Phil Dixon

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.

Does a Stipulation to Lab Results Waive Confrontation Rights?

July 17, 2018 Phil Dixon

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.

Structural Errors

June 19, 2018 Phil Dixon

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.