In State v. Harvey, ___ N.C. ___, ___ S.E.2d ___ (June 14, 2019), a five to one majority of the North Carolina Supreme Court affirmed the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018), holding that the trial judge properly refused to instruct the jury on perfect and imperfect self-defense in a homicide case. In so ruling, the majority in the Supreme Court and Court of Appeals relied on the “belief” doctrine created by our courts over the last 25 years. The opinions, four in all, show that our courts are continuing to wrestle with the implications of that doctrine. Continue reading
Category Archives: Crimes and Elements
Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?
Category: Crimes and Elements, Procedure | Tags: charges, indictment, naming the victim, pleading requirements, sex crimes, sexual assault, state v. mcKoy, state v. white, victim
Several years ago (some might say that’s an understatement) I wrote The Law of Self-Defense in North Carolina, in which I looked at over 200 years’ worth of North Carolina court opinions on self-defense and related defenses, such as defense of others and defense of habitation. The book’s approach reflected that North Carolina was a common law state when it came to self-defense. The right to act in self-defense depended primarily on the authority of court decisions. The General Assembly’s adoption in 2011 of three defensive force statutes—G.S. 14-51.2, G.S. 14-51.3, and G.S. 14-51.4—changed that. An understanding of the law of self-defense in North Carolina now must begin with the statutory law of self-defense. Continue reading →
Category: Crimes and Elements, Evidence, Procedure, Uncategorized | Tags: defense of habitation, defense of others, self-defense
Back in November of last year, I wrote about hemp and CBD laws here. I have been teaching quite a bit on the subject lately and wanted to follow up that post with an examination of how legal use of hemp products may affect marijuana prosecutions in North Carolina. Continue reading →
Category: Crimes and Elements, Evidence, Search and Seizure | Tags: cannabis, CBD, drug identification, drug paraphernalia, drug tests, hemp, marijuana, state v. fletcher
Let’s start with a brainteaser:
If there are no North Carolina criminal appellate cases citing to Rules of Evidence 803(7) or 803(10), does that prove that the rules are never used?
If you know your rules of evidence, then you get it. (You’re probably not that amused… but you get it.) If you need a quick refresher on these two rules, or an explanation of why it would be surprising that there are virtually no criminal appellate cases mentioning either of them, read on.
Category: Crimes and Elements, Evidence, Uncategorized | Tags: 803(10), 803(6), 803(7), 803(8), absence of records
In a post here, I noted that under state law, counties, cities, towns, and metropolitan sewerage districts have authority to create crimes through local ordinances. This is a somewhat controversial issue. As I’ve noted, one of the arguments made in the national conversation about overcriminalization is that too many minor activities are made criminal and that it’s not efficient, effective, or fair to address this activity through the criminal justice system. It’s further asserted that many low-level crimes—such as panhandling and sleeping in public places—criminalize poverty and homelessness when those issues should be treated as social needs. In fact, at a panel discussion on overcriminalization at my recent NC Criminal Justice Summit, national and state experts from across the ideological spectrum weighed in on this issue, agreeing that creating a crime is a legislative function and should be done by state lawmakers, not local governments. Those panelists included Vikrant Reddy, Senior Fellow, Charles Koch Institute; Nathan Pysno, Director of Economic Crime and Procedural Justice, National Association of Criminal Defense Lawyers; Tarrah Callahan, Executive Director, Conservatives for Criminal Justice Reform; and Mary Pollard, Executive Director, North Carolina Prisoner Legal Services and President, North Carolina Advocates for Justice. The 240 state leaders and stakeholders who attended the Summit echoed that sentiment. During live, anonymous polling during the session, attendees weighed in on three consensus reform proposals formulated by the panelists to address overcriminalization in North Carolina. One of those proposals was: Repeal code provision allowing local governments and administrative boards and bodies to create crimes. 75.72% of attendees supported that proposal, with 26.59% supporting it with caveats; 19.65% opposed it; and 4.62% were undecided.
A new study by UNC professors raises questions about how we think about drug prosecutions. In Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, the authors reviewed more than 700,000 drug arrests and examined the race of the arrestee, the type of drugs involved, and the quantity of drugs involved. According to the authors, several important points emerge from the data: 1) The vast majority of all drug arrests are for marijuana; 2) The vast majority of all drug arrests are for very small amounts of drugs; 3) People of color are disproportionately arrested for drugs; 4) Such disparities are likely due to the types of drugs targeted by law enforcement and not due to any racial group’s greater involvement in the drug trade. Their study challenges the common rationale for prosecuting low level drug offenders: that in order to catch the big fish (the “sharks”), we must first catch the small fish (the “minnows”). “A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color.” Joseph Kennedy, Issac Unah, & Kasi Wahlers, Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, 52 U.C. Davis L. Rev. 729, 730 (2018) (citations hereafter are to the page numbers of the pdf file linked above). The authors argue that their data supports changing the way we approach drug prosecutions by eliminating felony liability in cases involving a gram or less of any drug. This post examines some of those findings. Continue reading →
Category: Crimes and Elements, Uncategorized | Tags: drug arrest data, drug quantity, drug war, drugs, minnows, race, racial disparities, sharks
Earlier this week, I was asked to provide a criminal law case update to a group of attorneys. I started the session by giving them a quiz, which I thought could go one of two ways. Possibly, they’d know all the answers and tune me out for the next hour. On the other hand, maybe they’d have some uncertainty, and some interest, and would tune in to see what the court said. Fortunately, on Tuesday, the latter sentiment prevailed.
Given that our readers are voracious consumers of criminal law, I thought you might enjoy taking the quiz and seeing what you know – or don’t – about recent decisions from the appellate courts. Interest piqued? Try your hand at answering the questions below.
This question has come up more than once around here lately, so I thought it would be worth summarizing in a blog post.
The defendant is in district court charged with a routine misdemeanor (e.g., larceny, assault, or DWI). The state has additional evidence that would support pursuing a related felony charge instead (e.g., new information about the value of the stolen property, the severity of the injuries inflicted in the assault, or the defendant’s multiple prior convictions for DWI). The prosecutor and the defense attorney talk it over, and they reach a deal: the state will not bring the higher felony charge, but only if the defendant pleads guilty to the misdemeanor – right now, as charged, take it or leave it.
The defendant agrees and enters a guilty plea. Then, a few days later, the defendant gives notice of appeal to superior court for trial de novo on the misdemeanor. May the state now prosecute the felony charge in superior court?
This post walks through the legal arguments for and against it, and then offers a few suggestions on how the state can avoid getting caught in this trap in the first place, including one option whose persistent absence from North Carolina criminal practice really puzzles me: a basic appeal waiver.
Category: Crimes and Elements, Procedure, Uncategorized | Tags: appeal waiver, Blackledge, double jeopardy, due process, misdemeanor appeal, trial de novo, vindictiveness
Last week, the court of appeals decided State v. Miller, a case in which the defendant was convicted of maintaining a dwelling based almost entirely on the fact that he conducted a drug sale there. Would the court of appeals find the evidence sufficient under State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), which substantially expanded the scope of maintaining a dwelling and related offenses? Continue reading →
