This post summarizes published criminal and related decisions released by the Fourth Circuit Court of Appeals during February 2023. Cases that may be of interest to state practitioners are summarized monthly. Previous Fourth Circuit case summaries can be found here.
Phil Dixon
Possession of Khat
Readers may have heard of the plant commonly known as khat or qat (or Catha edulis, for the botanically inclined). The plant is indigenous to Africa and is popular in parts of that continent, as well as parts of the Middle East, and is commonly and legally used in some of those places. When the plant is ingested, it acts as a stimulant. As with more familiar stimulants, users tend to experience mild feelings of alertness and euphoria in smaller doses; larger doses can induce delusional thinking, mania, paranoia, and heart problems (among other potential harmful effects). Users typically ingest the plant by chewing its leaves. Exotic though it may be, the plant occasionally finds its way into North Carolina. I have heard anecdotal reports of its presence in Durham, and this recent story from WRAL News noted that it was found in Johnston County as a part of an unrelated investigation. This post examines state law on possession and distribution of khat. Read on for the details.
A Refresher on North Carolina’s Needle Exchange Law and Other Harm Reduction Immunities
In response to the opioid crisis, North Carolina passed several protections designed to alleviate some of the legal liability surrounding drug use in the interest of harm reduction and public health. One of those protections authorized needle exchange programs (alternatively known as safe syringes programs). G.S. 90-113.27. A recent study examined how the needle exchange program is working in seven North Carolina counties and found that the law was not consistently applied. Brandon Morrison et al., “They Don’t Go by the Law Around Here”: Law Enforcement Interactions After the Legalization of Syringe Services Programs in North Carolina, vol. 19, Harm Reduction Journal, 106 (Sept. 27, 2022). Considering the study’s findings, I thought a refresher on the immunity provisions for syringe exchanges and similar protections would be timely. Read on for the details.
Failure to Appear at Civil No-Contact Hearing Was a Prior Opportunity for Cross-Examination and Constituted an Implied Waiver of Confrontation Rights at Subsequent Criminal Trial
The Confrontation Clause of the Sixth Amendment generally guarantees a criminal defendant the right to confront and cross-examine his accusers in person. If a witness was available for an earlier trial or other proceeding and the defendant had an opportunity and motive to cross-examine the witness there, the witness testimony from the earlier proceeding may be admitted at a later criminal trial without offending the Confrontation Clause if the witness is unavailable at the time of trial. We have known for some time that this “prior opportunity for cross-examination” can be met at various stages of a criminal proceeding. See State v. Rollins, 226 N.C. App. 129 (2013) (testimony from plea hearing provided prior opportunity for cross); State v. Ross, 216 N.C. App. 337 (2011) (same for testimony at probable cause hearing); State v. Ramirez, (2003) (same for testimony at bond hearing, although the case was decided under hearsay rules and not expressly as a confrontation issue); State v. Chandler, 324 N.C. 172 (1989) (same for testimony from a prior trial); State v. Giles, 83 N.C. App. 487 (1986) (same for testimony from a juvenile transfer hearing). In all those cases, though, the defendant was present at the earlier proceeding, was represented by counsel, and the earlier proceedings could naturally be viewed as a part of the underlying criminal case. In State v. Joyner, 2022-NCCOA-525, ___ N.C. App. ___ (2022), the Court of Appeals expands the concept of prior opportunity to cross to a civil hearing where the defendant did not attend the hearing and was not entitled to counsel. Read on for the details.
Fall 2022 Cannabis Update
It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details.