Crimes and Elements

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Witness Intimidation

I am an avid watcher of television legal dramas—although I can’t say whether that is because of or in spite of my profession. Even so, it is easy for me to pick up on the unrealistic portions of those shows: the ease of gathering evidence, the speed with which perpetrators are caught, the overall swiftness of the trial—the entire process usually being completed within 45 minutes. I also tend to pick up on some of the more realistic, practical aspects of the shows: the differing types of offenses, the potential constitutional issues that may arise, and the corollary offenses that attach during the process.

One of the most common and possibly most overlooked corollary offenses is witness intimidation. The perpetrators almost always engage in some sort of interference but are rarely charged in the shows. That may be because there is already so much content to fit within a 45-minute time frame. But in real-world practice, it could also be because witness intimidation is not always as straightforward as one might think. This post analyzes North Carolina’s witness intimidation law as proscribed by G.S. 14-226, as well as other issues and nuances that may arise in this context.

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Possession of Fentanyl (2022 Update)

In an earlier post, I wrote that simple possession of fentanyl was a misdemeanor Schedule II offense under then-current law. No more. Effective Dec. 1, 2021, fentanyl possession in any amount is treated as a felony. I have been receiving calls about the change and thought a brief post would be useful. Read on for the details.

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“True Threats” After Taylor

Near the end of last year, the North Carolina Supreme Court decided State v. Taylor, 2021-NCSC-164, 866 S.E.2d 740 (2021), and we summarized the opinion here. This post considers the potential impact of Taylor on other offenses involving threatening speech, and addresses a couple lingering questions that may arise in future cases.

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Drunk and Disorderly: A Reminder Ahead of the Peak Sports Season

February tends to be a very popular month for sports. The Super Bowl is around the corner, NCAA basketball is heating up with conference games, we are deep into the NBA season, and even the MLB is gearing up for spring training. Fans show their support for and allegiance to teams while watching games at home, in the arena, or at a local bar. Celebration often leads to drinks, drinks occasionally lead to questionable behavior, and questionable behavior frequently leads to consequences. Although it is not a crime in North Carolina to be drunk in public, it is a criminal offense to be drunk and disorderly in public.

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Cyberstalking via Electronic Tracking Device

Most of us, at one point or another, have dedicated a day of the week to running our personal errands. That day might consist of going to the grocery store, shopping at the mall, or grabbing coffee with a friend. Now imagine on the way home from any of those activities, you get this notification on your iPhone:

You don’t own an AirTag or probably don’t even know what it is, but it doesn’t take long for you to realize that you’re being tracked. Recently, this has happened to unsuspecting people in Virginia and Arkansas.

While there have not yet been any reported instances in North Carolina, our cyberstalking statute prohibits this type of nonconsensual tracking. This post explores the cyberstalking offense as proscribed by G.S. 14-196.3.

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Court of Appeals Rules on Pretrial Self-Defense Immunity Hearings

Last month, the Court of Appeals decided State v. Austin, ___ N.C. App. ___, 2021-NCCOA-494 (Sept. 21, 2021), and a summary of the opinion is available here. Austin addressed several noteworthy self-defense issues, including the sufficiency of the state’s evidence to rebut the presumption of reasonable fear under the “castle doctrine” statutes added in 2011 and whether the trial court’s jury instructions on that issue were proper.

But first, the court had to decide whether the statutory language conferring “immunity from liability” meant that the defendant was entitled to have this issue resolved by the judge at a pretrial hearing. That’s a question I’ve been asked fairly often over the past few years, and my sense is that prior to Austin there were divergent practices on this point around the state.

This post takes a closer look at that portion of the court’s opinion, and explores what we now know and what we still don’t.

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General Assembly Amends Rules for Disclosure of Body Cam Recordings

North Carolina’s law governing the disclosure and release of body-worn camera footage took center stage last spring following the shooting of Andrew Brown in Elizabeth City. John Rubin wrote here about litigation on that issue, noting that one prominent feature of the statutory scheme was that determining matters of disclosure and release “takes time.” This session, the General Assembly amended the rules governing disclosure of recordings that depict death or serious bodily injury to require (1) that a court determine whether a recording be disclosed; and (2) that the court make such a determination within seven business days of the filing of a disclosure petition. This post will review those changes.

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Delta-8 THC (and beyond)

Cannabis news abounds: Virginia legalized recreational marijuana for adults 21 and up this year; our General Assembly has been considering a medicinal marijuana bill (S.B. 711); the Court of Appeals recently acknowledged (but did not decide) that precedent on the odor of marijuana as probable cause and on visual identification of the substance “may need to be re-examined” in light of legal hemp. State v. Parker, ___ N.C. App. ___, 860 S.E.2d 21, 29 (2021) (more on those issues here). I will write about the still-evolving issues with marijuana prosecutions in the state again soon. Today, though, I want to focus delta-8 THC. What is it? Is it legal? If so, how? Turns out the first question is simpler than the rest.

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New Requirement that Law Enforcement Officers Intervene and Report Excessive Use of Force

The North Carolina Task Force for Racial Equity in Criminal Justice recommended in a 2020 report that state and local law enforcement agencies enact policies requiring officers to intervene in and report about circumstances in which a law enforcement officer witnesses excessive use of force or abuse of a suspect or arrestee. The North Carolina Sheriff’s Association similarly recommended in a 2020 report that all law enforcement agencies and the North Carolina Law Enforcement Accreditation Program adopt a policy requiring an officer to intervene when necessary to prevent another officer from using excessive force and to report any such intervention. This session, the General Assembly imposed such duties as a matter of state law rather than agency policy. This post will discuss current statutory law governing officer’s use of force and recent amendments enacted by S.L. 2021-137 (H 536) and S.L. 2021-138 (S 300).

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