blankDaniel Spiegel

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Revisiting Simeon v. Hardin: Part I, Pretrial Delay

Last year, I blogged about calendaring practices and whether it is appropriate for an ADA to unilaterally reset a matter in superior court after the court has approved a date for trial. In writing and teaching on calendaring authority, I am surprised how few practitioners are familiar with the landmark case of Simeon v. Hardin, … Read more

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News Roundup

In response to the stabbing of Iryna Zarutska in Charlotte on August 22, North Carolina legislators are proposing various criminal justice reforms. Brittany noted last week that Republican legislators are advocating for various changes such as restarting the death penalty, ending cashless bail for those with felony convictions, and mandating that judicial officials consider homelessness and mental health when determining conditions of pretrial release.

This week, Democratic representative Laura Budd responded with a different slate of reforms, calling for funding for 5,000 additional local police officers statewide, along with 5,000 crisis assistance co-responders. She is also proposing that judicial officials initiate mental health commitments where appropriate and that people found incompetent to proceed be tried in state hospitals.

Yesterday, Chief Justice Paul Newby of the North Carolina Supreme Court issued an order creating a new Pretrial Release Task Force to survey pretrial release practices statewide and make recommendations as to best practices and potential legislative changes.

Read on for more criminal justice news.

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Warrantless Review of Electronic Monitoring Data: Cases Outside North Carolina

In February, I blogged about State v. Thomas, 295 N.C. App. 564 (2024), and whether law enforcement can review ankle-monitoring data without a warrant. The defendant in Thomas was on post-release supervision when officers pulled his location data, and the Court of Appeals upheld the warrantless retrieval of the data. However, questions remain about whether a warrant is necessary when a supervisee is on probation or pretrial release. Although North Carolina appellate courts have not directly addressed these questions, courts outside the state have in recent years. This post examines some of the cases.

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Case Summaries: N.C. Court of Appeals (August 6, 2025)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 6, 2025.

The State presented sufficient evidence to establish that a hammer was used as a dangerous weapon to support conviction for robbery with a dangerous weapon.

State v. Blackburn, No. COA24-1016 (N.C. Ct. App. Aug. 6, 2025). The victim was sleeping in his Mazda as he did every night when he was awakened by banging on the outside of his car. Two men pulled the victim from the car and held a gun to his head. Three men threatened to shoot him if he didn’t hand over his money, and when the victim stated he didn’t have any money, the men pushed him against the car facing the vehicle, and one of the men hit the victim with a hammer. The defendant stated he hit the victim with a hammer on the back of the victim’s shoulder, while the victim testified that he was hit on the back of the head and neck, fell to the ground, and lost consciousness for a short period. When he came to, he saw the men driving away in the Mazda. The defendant was apprehended near the stolen vehicle later that night. The defendant was convicted of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon after a jury trial.

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News Roundup

The town of Wendell, NC, recently purchased two drones and associated equipment for $20,000 to support the police department. Officials state the drones will help locate missing or endangered people, find criminal suspects, investigate traffic crashes, and support special operations. A sergeant noted the drones could be particularly helpful in locating children or adults with cognitive issues who go missing. The drones have heat-detecting cameras, live tracking, high-powered zoom, and distance-measuring tools. Proponents are optimistic that the technology will help officers by providing a perspective on chaotic scenes before officers go in blind. However, civil liberties groups have concerns that the technology may lead to intrusions on privacy. Law enforcement drone programs are proliferating throughout North Carolina in places such as Asheville, Burlington, Chapel Hill, Charlotte, and Winston-Salem.

Read on for more criminal law news.

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A New Way to Authenticate Video? State v. Windseth and the Business Records Exception

Special thanks to Sloan Godbey, Summer Law Fellow at UNC SOG, for their significant contributions to this post.

In March of last year, I did a thorough review of North Carolina cases addressing the authentication of surveillance video. I created a chart to understand what ingredients are adequate (and inadequate) to lay a foundation. That chart can be found here, and the related blog here.

However, a case came down in March of this year that raises significant questions about how video is authenticated, or at least introduces a new potential avenue for authenticating video. I’m afraid my cherished chart may soon be of limited utility. But such is the way the law develops!

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Common Character Evidence Questions in Self-Defense Cases

Character evidence is one of the most challenging areas of evidence law to navigate, as Jessie Smith observes here. Jessie’s blog features a useful chart to apply Rules 404 and 405 and also links to the bench book chapter.

I find it helpful to see these rules in action with concrete examples. A common context in which the character evidence rules come into play in criminal cases is self-defense cases. This post discusses several common questions that arise, as well as some adjacent issues.

Let’s use a simple hypothetical:

The defendant is charged with shooting the victim outside of a bar after an argument about whether the victim approached the defendant’s girlfriend. The defendant claims that the victim came at him first with a knife.

The questions below deal with what the defendant can elicit about the victim and what the State can elicit about the defendant. As we work through the examples, remember that Rule 404 addresses when character evidence is admissible or inadmissible, and Rule 405 addresses the method of proof for the character evidence (reputation/opinion evidence or specific instances of conduct).

Rules 404 and 405 are included at the end of the post for reference.

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News Roundup

Two immigration enforcement bills have passed at the General Assembly and are now on Governor Josh Stein’s desk. The deadline for his signature or veto is today.

The first bill, SB 153, contains several provisions, one of which would require state law enforcement agencies such as the State Highway Patrol and the Department of Public Safety to contact ICE if they have someone in custody who is not a legal resident or U.S. citizen. State law enforcement officers would be trained to act as immigration officers pursuant to the 287(g) program.

The second bill, HB 318, makes updates to the previously passed HB 10. Existing law, discussed by Brittany here, requires county jails to inquire into the immigration status of individuals charged with certain felonies and high-level misdemeanors and contact ICE if the jail is unable to verify that an individual is a legal resident. The new law would expand the list of crimes for which jails would have to check status. In addition, existing law mandates that a 48-hour hold be imposed upon receipt of an ICE detainer.  The updated law would require that the 48-hour hold be imposed once the individual would otherwise be released, rather than upon receipt of the detainer.

Read on for more criminal law news.

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The Prior Record Level Worksheet with Missing Convictions: A Persistent Ethical Dilemma

Suppose you are a defender representing a client charged with Possession of Firearm by Felon. You receive a plea offer in the case, along with the AOC-CR-600B, the “Worksheet” regularly used for calculating the Prior Record Level (PRL) before sentencing. You review the worksheet and notice that it makes no reference to a prior felony conviction for which your client served prison time. You know of this missing conviction because you regularly verify the information the State provides to you, and you saw the conviction in the relevant database. You also discussed the conviction with your client when interviewing him about his past experiences and record in prison. Without the prior conviction, your client would be sentenced as a PRL III for felony sentencing purposes, but with the conviction, your client would be sentenced as a PRL IV. The general practice in your judicial district is for both parties to sign the PRL Worksheet, stipulating to the information set forth on the form and agreeing with the defendant’s PRL classification as indicated.

How should you proceed?

In teaching felony defenders here at SOG, I’ve seen this ethical dilemma threaten to swallow up the allotted ethics hour on multiple occasions. It is a challenging issue that, like many other dilemmas, involves a clash between ethical obligations.

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News Roundup

New data from the Centers for Disease Control and Prevention (CDC) indicates that drug overdose deaths in the U.S. declined significantly in 2024 as compared to 2023, reaching their lowest levels since 2019. Experts from the CDC state that increased funding from Congress has enhanced their ability to collect and analyze data, which in turn has allowed for more targeted and effective prevention efforts. Deaths from fentanyl fell by approximately 37%, while deaths from cocaine and psychostimulants also declined significantly. The declines were consistent across virtually all geographic regions.

Some experts attribute the changing trend to wider availability of the overdose-reversal drug naloxone as well as stepped-up treatment. Others contend the decline stems more from fewer people getting addicted in the first place.

Despite the encouraging news, drug overdoses remain the leading cause of death for individuals between the ages of 18 and 44.

Read on for more criminal law news.

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