Suppose John is facing a deadly assault and fears that he will be killed or suffer great bodily harm. John has a firearm but, rather than shoot his assailant, he fires a warning shot. The shot goes awry, strikes John’s assailant, and kills him. May John rely on self-defense if charged with murder? The answer may be surprising.
John Rubin
Fare well, Alyson
This blog post has good news, bad news, and good news about Alyson Grine, who has served as the School’s defender educator for ten years. During that time, Alyson and I worked closely together on indigent defense education, and I wanted to write this farewell on the School’s behalf. The good news is that she is excited to start her new position this fall as an assistant professor at North Carolina Central University School of Law, and we are excited for her. You can reach her at agrine@nccu.edu. The bad news is that she will be leaving the School, and to put it mildly we are sorry to see her go. Then again, the good news is that she leaves a remarkable record of accomplishments in indigent defense education, on which we can continue to build. What has she done in the past ten years? The more apt question is what hasn’t she done.
Is “Justification” a Defense to Possession of a Firearm by a Person with a Felony Conviction?
North Carolina law prohibits a person who has been convicted of a felony from possessing a firearm. The prohibition, set forth in G.S. 14-415.1, contains narrow exceptions, such as for antique firearms. The question has arisen in several cases whether a person with a prior felony conviction may possess a firearm if necessary to defend himself or others—in other words, whether the person may rely on a justification defense.
Waiving the Assistance of Counsel in District Court Cases
Suppose that when a criminal defendant appears in court, he is advised of the right to have counsel appointed if indigent, tells the judge he wants to hire his own lawyer, and signs a written waiver of his right to appointed counsel. When the defendant next appears in court, he does not have a lawyer. May the judge rely on the waiver of appointed counsel to require the defendant to proceed, without inquiring whether the defendant wants the assistance of counsel?
The Statutory Felony Disqualification for Self-Defense
I am working on a new edition of the self-defense book I wrote in 1996. As in the story of Rip Van Winkle, a lot has changed in twenty years. Most notably, the General Assembly adopted new statutes in 2011 on self-defense and related defenses. This blog post addresses one of those provisions, in G.S. 14-51.4, which disqualifies a person from relying on self-defense while committing, attempting to commit, or escaping from the commission of a felony. North Carolina appellate courts have not yet considered the meaning of this provision. Cf. State v. Rawlings, ___ N.C. App. ___, 762 S.E.2d 909 (2014) (felony disqualification did not apply to case in which defendant’s offense predated enactment of provision, and court expressed no opinion on proper construction of provision).
A Rare Opinion on Criminal Discovery in North Carolina
There seem to be fewer and fewer reported decisions about criminal discovery in North Carolina. A recent North Carolina Supreme Court decision finding a discovery violation by the prosecution, State v. Davis (Apr. 15, 2016), made me wonder why. This post reviews the evolution of North Carolina’s criminal discovery laws, which has brought relative calm to this area of law, along with the decision in Davis, which deals with a recurring issue about disclosure of expert opinion.
The Results Are In: Trial Judges’ Views of IDS
In 2015, the Office of Indigent Defense Services (IDS) asked the School of Government to conduct an online survey of how superior and district court judges view IDS’s administration of indigent defense in North Carolina. Last week, the School issued its report of the survey results, Trial Judges’ Perceptions of North Carolina’s Office of Indigent Defense Services: A Report on Survey Results (March 2016) (referred to below as the Report). The verdict? Judges have a positive view of IDS’s performance, overall and in several key areas, but the results include a few warning signs for indigent defense.
Is Misdemeanor Trespassing and Misdemeanor Shoplifting Really a Felony?
The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge.
Interpreting Sex Offender Consequence Laws: Contact with Minors
A few years ago I began tracking and compiling the consequences that attach to an offense subject to sex offender registration (a registrable offense). In preparation for an upcoming course, I just updated my Consequences Paper.
The list of consequences continues to grow. So, too, has litigation over them. A recent court of appeals decision, State v. Barnett (Jan. 19, 2016), considered the limits on the court’s authority to enter a no-contact order against a person convicted of a registrable offense. (Jamie Markham wrote a blog post about another aspect of the decision—whether attempted rape is an aggravated offense and subject to stricter registration and monitoring requirements. It isn’t.) [After publication of this blog post, the North Carolina Supreme Court reversed the Court of Appeals’ decision in Barnett. The Supreme Court agreed that G.S. 15A-1340.50 protects the victim of the offense, not third parties, and a judge may not prohibit contact with third parties for their protection; however, the Supreme Court held that, on appropriate findings, a judge may prohibit the defendant from indirectly contacting the victim through specifically identified third parties, such as the victim’s family.]
What to Do About Outstanding Arrest Warrants
Have you ever been involved in a case in which the defendant was convicted of a criminal charge, did his time, and then was served with an outstanding warrant even though the warrant was pending when he was convicted of the other charge? If the warrant had been served earlier, the defendant could have taken care all of his criminal business at once. Doing so would save the court time, allow the State to come up with an appropriate resolution of all the charges, and allow the defendant to coordinate his defense and, if convicted, seek concurrent sentences or a combination of active and probationary time. If resolved before a single court at the same time, the charges could be consolidated for judgment (G.S. 15A-1340.15(b)) and also would result in fewer prior record points (G.S. 15A-1340.14(d)).
A little-noticed piece of legislation from 2015, S.L. 2015-48 (H 570), attempts to address the problem of unserved warrants. Effective October 1, 2015, the legislation directs law enforcement agencies, the Division of Adult Correction, prosecutors, and the courts to identify and attempt to resolve outstanding warrants while other charges are pending or the defendant is in custody.