Suppose that a law enforcement officer testifies for the State in a criminal case and is unable to remember some aspects of his investigation. The prosecutor shows the officer his report, which the officer prepared in the ordinary course of his work around the time of the events, but it does not refresh his memory. The prosecutor offers the report as evidence. The defendant’s attorney objects, relying on North Carolina Rule of Evidence 803(8). That rule creates an exception to the hearsay rule for official records and reports, but it specifically excludes “in criminal cases matters observed by police officers and other law-enforcement personnel.” The prosecutor argues that notwithstanding this prohibition, the report is admissible under other hearsay exceptions. Who’s right?
John Rubin
Court of Appeals Rejects Habitual Felon Sentence Based on Enhanced Sentence for Misdemeanor Possession of Marijuana
Suppose a person is convicted of the misdemeanor of possessing more than 1/2 ounce but no more than 1 1/2 ounces of marijuana, a Class 1 misdemeanor under G.S. 90-95(d)(4). Suppose further that the person was convicted previously for an offense under North Carolina’s Controlled Substances Act. Based on this prior conviction, the person may be “punished as a Class I felon” under G.S. 90-95(e)(3). May the State also use that felony punishment as the current felony for the purpose of prosecuting the person as a habitual felon? If so, the punishment would increase four more classes—from a Class I to a Class E felony—under the habitual felon sentencing scheme in G.S. 14-7.6.
Announcing C-CAT 2.0
Several years ago the School obtained a grant from the Z. Smith Reynolds Foundation to create an online, searchable database of the collateral consequences of a criminal conviction in North Carolina. In 2012, after two years of legal and IT work, we launched the Collateral Consequences Assessment Tool, or C-CAT for short, to assist attorneys, reentry professionals, affected individuals, and policymakers in understanding the impact of a criminal conviction. We’re happy to announce we have given C-CAT a new look. It is available, still at no charge, at http://ccat.sog.unc.edu/.
Welcome, Phil Dixon
I want to kick off 2017 by welcoming the School of Government’s new Defender Educator, Phillip R. Dixon Jr. Today is his first day on the job. You can already reach him at dixon@sog.unc.edu and 919.966.4248.
At an Impasse Again
Twenty-five years ago the North Carolina Supreme Court departed from national standards on attorney-client decision-making and gave clients greater control over the direction of their case, including trial strategy and tactics. Since then, the North Carolina courts have sorted through various matters on which attorneys and clients have disagreed. A recent decision, State v. Ward (Nov. 1, 2016), applies and perhaps expands one of the exceptions to client control over the case.
How Many Expunctions Can a Person Get?
I sometimes get this question from judges, lawyers, and individuals seeking relief. The answer is: As many as the law allows. North Carolina’s statutes establish precise requirements for obtaining an expunction, including conditions barring relief. Many of the statutes specify that a prior expunction of an adult criminal proceeding bars a later expunction (more on juvenile proceedings below). Some statutes contain no such language, however. Under the terms of those statutes, a person with a prior expunction can obtain a later expunction if he or she meets the other requirements for relief. There is not a general prohibition on a subsequent expunction. Here are the principal statutes providing for this result.
When Agencies Disagree with Criminal Court Decisions
In criminal proceedings, court orders can affect other agencies. When the court imposes a sentence of imprisonment, the Division of Adult Correction has the responsibility of carrying it out. If the court issues a limited driving privilege in a traffic case, a person can drive even though the Division of Motor Vehicles has revoked the person’s license. A court may grant an expunction petition, requiring law enforcement agencies to destroy records of the criminal case. What happens if the affected agency believes that the order is unlawful? A recent decision, In re Timberlake (Oct. 18, 2016), provides some clarity about the procedures to follow, at least in the context of that case.
Culling Feral Swine from Aircraft
Every year as I do presentations about new criminal law legislation, a smaller piece of legislation catches my eye. Invariably as I look into the legislation, I learn about the concerns that led to the legislation. An example this year is S.L. 2016-113 sec. 3 (S 770), which allows the culling of feral swine—that is, wild boar—from aircraft. At first glance, the description conjures up images of hunting parties taking to the sky to go after wild boar. That’s not what the legislation contemplates. Taking wild animals from or with the use of aircraft remains a misdemeanor under North Carolina law. See G.S. 113-191.1(b)(1); G.S. 113-135(a). The legislation adds a new statute, G.S. 113-299, creating a narrow exception from this prohibition for wildlife officers and similar federal employees. What’s behind the legislation? What does it allow? What doesn’t it allow?
Self-Defense Provides Immunity from Criminal Liability
So say two statutes enacted by the General Assembly in 2011 as part of its revision of North Carolina’s self-defense law. G.S. 14-51.2(e) and G.S. 14-51.3(b) both state that a person who uses force as permitted by those statutes—in defense of home, workplace, and vehicle under the first statute and in defense of self or others under the second statute—“is justified in using such force and is immune from civil or criminal liability for the use of such force . . . .” What does this protection mean in criminal cases? No North Carolina appellate cases have addressed the self-defense immunity provision. This blog post addresses possible implications.
Meet the New IDS Assistant Director and General Counsel
The Office of Indigent Defense Services (IDS) is responsible for providing legal representation for indigent defendants and respondents in North Carolina. It is a small agency with a big job, spanning representation in criminal prosecutions, parental rights proceedings, involuntary commitment cases, and other cases affecting important rights. This blog post introduces Whitney Fairbanks, the new assistant director and general counsel of IDS. That position is often the point of contact for lawyers, court officials, and others involved with indigent defense. The following is from an interview I conducted of Whitney last week.