Legislation that will come into effect on December 1, 2018, made some changes related to drug trafficking.
Crimes and Elements
Self-defense, Intent to Kill and the Duty to Retreat
Consider the following scenario: Driver Dan is traveling down a dark county two-lane road in his sedan. Traffic is light but slow due to the cold weather and mist. Another driver in a truck appears behind Dan and starts tailgating him, getting within a few feet of his bumper. After unsuccessfully trying to pass Dan, the other driver begins tailgating Dan even more, now staying within inches of his bumper. When the cars ahead turn off and the road is clear, slows to let the other driver pass, but the other driver continues closely riding Dan’s bumper for several miles, flashing high beams at times. Eventually, the other driver pulls alongside Dan and begins “pacing” him, staying beside Dan’s car instead of passing. The other driver then begins to veer into Dan’s lane, forcing Dan’s passenger-side tires off the road. As Dan feels the steering wheel begin to shake, he fears losing control of his car and decides to defend himself with his (lawfully possessed) pistol. He aims through his open window at the other driver’s front tire and shoots, striking it and halting the other vehicle. The other driver stops without further incident, and Dan leaves. Dan is eventually charged with shooting into an occupied and operating vehicle, a class D felony and general intent crime.
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Court of Appeals Approves Justification Defense for Firearm by Felon
For several years now, it has been an open question in North Carolina whether a justification defense to possession of firearm by felon is available. John Rubin blogged about the issue back in 2016, here. Our courts have assumed without deciding that the defense might apply in several cases but have never squarely held the defense was available, finding instead in each previous case that defendants didn’t meet the admittedly rigorous standards for the defense. This month, the Court of Appeals unanimously decided the issue in favor of the defendant. In State v. Mercer, ___ N.C. App. ___ (August 7, 2018), the court found prejudicial error in the trial judge’s refusal to instruct the jury on justification in a firearm by felon case and granted a new trial. Read on for more details.
G.S. 15A-928: One crime, two charges, one judgment?
Whenever a prior offense “raises an offense of lower grade to one of higher grade and thereby becomes an element” of the current offense (e.g., habitual larceny, habitual misdemeanor assault, habitual DWI, and second or subsequent charges for certain other offenses such as stalking, shoplifting, or carrying a concealed firearm), the state must plead and try the case in compliance with G.S. 15A-928. In short, this statute requires that: (i) an “improvised” name for the alleged offense must be used to avoid referring to any prior convictions; (ii) any prior offenses must be alleged in a separate indictment (or at least as a separate count within the indictment); (iii) the defendant must be separately arraigned on the alleged priors outside the presence of the jury; and (iv) if the defendant admits to the prior convictions, then that element has been proved and the state may not present evidence on it, nor will it be submitted to the jury.
Shea Denning has previously posted about G.S. 15A-928 and some of the key cases interpreting its requirements here and here, but last week I received an interesting procedural question on this topic.
When the state complies with these pleading rules, the result will be two separate indictments (or counts) pending in court, but of course there is really only one criminal offense being charged, and the defendant may only receive one punishment for it. What is the recommended procedure for how the charge(s?) and sentence(s?) should be reflected in the plea transcript or verdict form, and how should the court structure its judgment? This post offers a few thoughts and suggestions.
Defensive Force in the Home
We now have a number of appellate opinions interpreting the defensive force statutes enacted by the North Carolina General Assembly in 2011. In State v. Kuhns, ___ N.C. App. ___ (July 3, 2018), we have our first opinion squarely addressing the provisions of G.S. 14-51.2, which deals with defensive force in a home, workplace, or motor vehicle. This post focuses on the home, where the conflict in Kuhns occurred, but some of the same principles apply to the workplace and motor vehicles.
Is It Disorderly Conduct? And How Should the School Respond?
Author’s note: The North Carolina Supreme Court reversed the decision of the court of appeals discussed below as to the adjudication for disorderly conduct. In re T.T.E., ___ N.C. ___, 831 S.E.2d 293 (2019). The state supreme court concluded that substantial evidence established that the juvenile perpetrated an “’annoying, disturbing, or alarming act … exceeding the bounds of social toleration normal for’” the high school during the course of the instructional day through a public disturbance by “’engaging in violent conduct’” by “’throwing a chair toward another student in the school’s cafeteria.’”
A high school student throws a chair in the cafeteria. The chair doesn’t hit anyone; indeed, no one is in the immediate vicinity of the chair. The student runs out of the cafeteria. Has the student committed a crime? If so, how should school officials respond?
Expanded Forgiveness of a Criminal Conviction
Earlier this year, I had the opportunity to participate in a national roundtable, sponsored by the American Law Institute and National Conference of State Legislatures, on current and possible approaches to relieving the consequences of a criminal conviction. We considered three basic approaches: “forgetting” convictions by expunging them or limiting access to information about them; “forgiving” convictions through, among other things, certificates of relief, also known as certificates of rehabilitation; and “forgoing” convictions by diverting matters before conviction or decriminalizing them altogether. In its recently-completed legislative session, the North Carolina General Assembly expanded the forgiveness approach by making it easier to get a certificate of relief. Read on for more about this relatively new relief mechanism. If you’re interested in approaches elsewhere, the papers submitted by the various scholars and practitioners invited to the roundtable were recently published in the Federal Sentencing Reporter, available here. You can read my paper about North Carolina here.
Got Probable Cause for Impaired Driving?
Two recent North Carolina Court of Appeals opinions help delineate when an officer has probable cause to believe a driver is driving while impaired. In each case, the court of appeals reversed the trial court’s determination that the officer lacked probable cause.
Does a No Contact Order Apply While the Defendant Is in Jail?
When setting conditions of pretrial release in domestic violence cases, magistrates and judges often order a defendant not to contact the victim. Those directives clearly apply to a defendant once he is released from jail subject to those conditions. But what about a defendant who remains in jail? Is he also subject to a no contact condition included on a release order? The court of appeals addressed that issue yesterday in State v. Mitchell.
Some Clarity on Self-Defense and Unintended Injuries
Earlier this year, in State v. Gomola, ___ N.C. App. ___, 810 S.E.2d 797 (Feb. 6, 2018), the Court of Appeals addressed a self-defense issue that has sometimes puzzled the North Carolina courts. The question in Gomola was whether a person can rely on self-defense to a charge of involuntary manslaughter. The Court answered with a decisive yes . . . if the basis for the involuntary manslaughter charge is an unlawful act such as an assault or affray.