A recent conversation reminded me about a question I’ve received several times over the years: On a habitual felon indictment, what should be listed as the offense date? The two main choices are (1) the date of the substantive felony with which the defendant is charged, and (2) the date of the last of the defendant’s previous convictions, i.e., the date that the defendant became a habitual felon.
Crimes and Elements
Pattern Jury Instructions Now Available for Free Online
Yesterday, I received the following announcement from a colleague here at the School. I thought that it was worth sharing in its entirety:
The North Carolina Pattern Jury Instructions (PJI) are now available, for free, in PDF Format in an Online Library from the UNC Chapel Hill School of Government. The Pattern Jury Instructions also remain available in hard copy and software formats.
Knives and the Right to Bear Arms
There’s been a great deal of litigation recently about firearms and the Second Amendment. But guns aren’t the only “arms” sometimes carried for self-defense, and there have been several recent cases about the status of knives under the federal Constitution and state constitutions.
The Significance of Naming a Hate Crime
The murder of three young, gifted students in Chapel Hill Tuesday evening has generated a local, national, and international outpouring of grief and outrage. Deah Barakat, 23, his wife, Yusor Abu-Salha, 21, and her sister, Razan Abu-Salha, 19, were shot dead in the Finley Forest condominium where newlyweds Deah and Yusor lived. A neighbor, Craig Stephen Hicks, fled the area after the shooting, but later turned himself into law enforcement officers. Hicks is charged with first degree murder in their deaths, and is being held without bond in Raleigh’s Central Prison. Police say that the killings were motivated by an ongoing neighbor dispute about, of all things, parking. Nevertheless, many, including Yusor and Razan’s father, suspect it also may have been motivated by the fact that the three were Muslims. Yusor regularly wore a headscarf—an outward manifestation of her faith.
Combining Drug Quantities
I’ve recently been asked several variants of this question: If a suspect sells drugs to an undercover officer on multiple occasions over a few days or weeks, can the drug quantities involved in each sale be aggregated to reach the trafficking threshold? That led me to spend some time looking at the more general issue of when multiple caches of drugs can be combined. This post lays out the law.
Reportable Kidnapping
In the course of robbing a convenience store, a man restrains a 17-year-old clerk. Suppose the parties work out a plea to second-degree kidnapping. Everything is fine until the judge advises the defendant of the maximum permissible punishment for his Class E crime: 136 months. “136 months?” his lawyer said, puzzled. “I thought it would be 88.” “It would be,” the court replied, “if this crime didn’t require registration as a sex offender.”
The Doctrine of Recent Possession
Recently a caller asked: Does the fact that the defendant was found in possession of goods five days after they were stolen create an inference that he stole them? The answer: It depends.
Are Driver’s License Revocations on the Agenda?
The 2015 North Carolina General Assembly convened earlier today, with new members sliding into place just as the first ice storm of the winter left the area. And while most folks’ attention will (as usual) be focused on the state budget, I’ll be watching over the next few months for legislation related to motor vehicle crimes. I’m particularly curious to see whether the General Assembly shows any interest in interrupting the cycle of driver’s license revocation, an issue that lately has attracted national attention.
Sex Crimes and Penetration
In the recent court of appeals case In re J.F., ___ N.C. App. ___, ___S.E.2d ___ (Nov. 18, 2014), the defendant argued that penetration is an essential element of sexual offense and crime against nature. Following prior case law, the court held that penetration is required for crime against nature, and that in the case presented, the evidence wasn’t sufficient on that issue. Turning to the sexual offense conviction, the court noted that offense covers different types of sexual acts, specifically, cunnilingus, fellatio, analingus, anal intercourse, and the penetration, however slight, by any object into the genital or anal opening of another person’s body. Id. (citing G.S. 14-27.1(4)). In the case before it, the relevant conduct was fellatio, a “touching” act, which the court held doesn’t require penetration.
Failing to advise a defendant of his implied consent rights requires suppression of the test results . . . except when it doesn’t
In opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results in impaired driving cases based on statutory violations related to their administration. When the violation consists of the State’s failure to advise a defendant of her implied consent rights, the appellate courts’ jurisprudence has been straightforward and consistent: The results of an implied consent test carried out without the defendant having first been advised of her implied consent rights are inadmissible. Indeed, the court of appeals reaffirmed that principle last June in State v. Williams, __ N.C. App. ___, 759 S.E.2d 350 (2014), holding that the State’s failure to re-advise the defendant of his implied consent rights before conducting a blood test under the implied consent statutes required suppression of the test results. A court of appeals opinion issued in the waning hours of 2014 indicates, however, that the rule is subject to at least one exception.