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[00:00:11.083] [SPEAKER_00] Welcome everybody to the North Carolina Criminal Debrief. This is episode 18 of our podcast series. This is a place where we talk about criminal law issues affecting North Carolina and beyond. I'm your host, Phil Dixon. I'm a faculty member here at the UNC Chapel Hill School of Government. As always, I'm here in the studio with DJ Paul Bonner on the ones and twos. Thanks as always to Paul for all of his sound booth wizardry. We talk a lot about cannabis and guns on this show, and today is no exception. We'll start out with a cannabis case, pretty fresh off the presses. This was released by the Court of Appeals on March 5th, 2025. State v. Ruffin. The temporary citation for that is COA 24-276, if you need it. This was a Martin County drug prosecution. That's a place I used to practice. Multiple counts of trafficking opiates, possession with intent to sell and deliver heroin, sale and delivery of marijuana. These are the charges Mr. Ruffin was facing. Apparently, there was an informant who was aware of Mr. Ruffin's activities in selling these substances. They contacted the police, and with the informant, the police arranged for that informant to make a controlled buy. From the defendant, the informant ordered, I believe it was seven grams of fentanyl and an eighth of marijuana from the defendant. And they specifically discussed an eighth of marijuana, an eighth of an ounce. And at some point during the recorded interaction, the defendant mentioned rolling a blunt, presumably referring to marijuana. The defendant is arrested immediately after this transaction. The drugs were recovered from the informant. I believe some additional suspected marijuana was found on the defendant at his arrest. Interestingly, the prosecution here sent this suspected marijuana to the North Carolina State Crime Lab. Well, that's sort of a step in the right direction. But as regular listeners know, the state crime lab only test for the presence of Delta 9 THC. They don't actually test the levels of THC. So from a scientific point of view, it does not tell you whether this substance is truly marijuana within the meaning of our criminal law. Or if it's hemp or something else altogether, they are identifying stuff as belonging to the family of plants in the cannabis genus, I guess, with some concentration of THC that has not been determined. Scientifically, again, that doesn't strike me as a particularly... informative result, but that's what we have. And that's how it is, as listeners know, across the state for any law enforcement affiliated crime lab, including our state crime lab, they do not have the ability to test for specific levels of Delta-9, which is the only way you can distinguish hemp from marijuana. There are private labs in the state that do this testing, and some jurisdictions will utilize those private labs, but those are more expensive, typically, and may have other problems, such as substitute analysts, another issue we've talked about on this show. But in any event... That's sort of the evidence in the case here. The analyst, as far as this marijuana, the analyst gets up on the stand from the crime lab, says, I've identified this as cannabis, having some concentration of THC. It's not clear to me from the opinion whether the analyst actually opined that this was marijuana. I believe that was the substance of her testimony, that this was cannabis, that this had some level of THC in it, but that they could not be sure about whether it was hemp or not. And indeed, on cross-examination, the defense attorney here made that point, and the analyst candidly acknowledged, Nope, I can't be sure. We are aware hemp is legal. We do not have the ability to distinguish him from marijuana without testing the specific levels. You don't know. So is it possible that this substance could have been hemp? The analyst said yes. Okay, that's where we're starting. Then the detective involved in this case takes the stand, and he too testifies, I'm an experienced officer. I've been in narcotics for so many years. I'm trained on drug recognition, and this stuff appeared to me to be marijuana. Again, as regular listeners know, that is scientifically a pretty questionable opinion from my perspective, at least, because you cannot look at hemp, high grade hemp or high grade marijuana and tell the difference just by visually examining it. And I think anyone familiar with the hemp industry would tell you that it's not a secret and it's not anything new. But high grade hemp product is going to look just like a high grade marijuana product. They're going to smell the same. They're going to look the same. But this officer is allowed to offer a lay opinion at trial that this stuff seemed to be marijuana. I give kudos to the trial lawyer for making these points with the analyst on cross about the limitations and shortcomings of the lab result. But there's no objection at trial to any of this opinion evidence, either by the analyst or by the detective. Folks, you got to make an objection when the objectionable evidence is presented at trial in order to preserve it for appeal. If you want it to be reviewed on appeal in the most favorable light to the defendant, it's not the most favorable light to the defendant, but in a better standard for the defendants from the defendant's perspective, there has to be an objection each time the challenged evidence is referenced at trial. And here that didn't happen. There was just no objection to any of this testimony. There's more. We have a jury instruction issue on this marijuana stuff. The defendant, again, the defense counsel is sort of aware of these issues enough that they request at the charge conference, judge, we think the pattern instruction on drug possession, as far as this marijuana goes, it needs to be modified to account for hemp. And we'd like the jury to be instructed that folks, you got to find the defendant knowingly possessed marijuana, but marijuana is not hemp and hemp and hemp products are not marijuana. Well, the judge agreed to give that instruction. didn't help. And again, there was sort of this other circumstantial evidence. I mean, not great facts here. There was a sale of about seven grams of opiates or opioids and some of that circumstantial evidence where the defendant had called it an eighth and referenced a blunt. And we've talked about that before, where back in the days of odor plus land, which we no longer follow as far as probable cause, but that That might be all the plus you'd need, is sort of the defendant referring to the substance with slang terms commonly associated with marijuana use. Looking at the definition of marijuana in GS 90-87 subsection 16, we know this is the law in North Carolina. Hemp and hemp products are not marijuana. Marijuana does not cover hemp. This is an accurate statement of law. When the defense requests an accurate statement of law be included in the instructions, the judge is supposed to give it in substance at least, and they did so here. So the trial court gives this modified instruction, but doesn't help the defendant. They convict, jury convicts the defendant on everything. That is trafficking heroin by sale, trafficking heroin by delivery, trafficking a mixture of heroin by transportation, trafficking a heroin mixture by possession, possession with intent to sell and deliver heroin mixture, sale of marijuana, and delivery of marijuana. And remember, this is all one sale. This is one pile of drugs and one pile of opiates and one pile of marijuana all being sold in one transaction. Under our trafficking laws, where with opiates and opioids, trafficking liability kicks in at four grams, he is able to be convicted sort of on all of these counts of trafficking by sale, by delivering, by possession, by transportation. That is a lot. Jesse Smith, one of my colleagues here at the School of Government, longtime faculty member, has an old blog post on the north carolina criminal law blog called why trafficking bites and it is because of exactly this kind of result had another person been involved he could have also been convicted of trafficking by conspiracy as well so those trafficking offenses carry mandatory minimums as most listeners know And here, even with the judge consolidating a lot of this stuff, he ran two of the trafficking sentences back to back. That was consecutive 70 to 93 month sentences. Everything else consolidated and run concurrent. But that's a total of 140 to 186 months, which is roughly 11 and a half to 16 years in prison for this single transaction. You may have heard me just say then he was convicted of sale of marijuana and delivery of marijuana. And for regular practitioners, that I hope set off an alarm bell in your head because that's a big problem. You can't do that. When the defendant is charged with sale and delivery of marijuana for the same marijuana, they cannot be convicted and punished for both separately. It's a sale or it's a delivery. And really, the two are logically inconsistent, right? I mean, a sale means you have exchanged drugs for some kind of thing of value, whether that's money or some service or some other tangible thing of value, maybe even an intangible thing of value. But a delivery occurs where there is no remuneration. I'm just giving you drugs out of the kindness of my heart, I guess. But it's not going to ever be both, doesn't seem to me, not for the same drugs. Here, though, is not a reversible error because the sale and delivery were consolidated with one another. Those were run concurrently with the trafficking convictions, which were, from the defendant's perspective, a much bigger problem. But it's worth remembering both sale and delivery on the same drugs should never be sent to the jury. The delivery here should have probably been kicked at the motion to dismiss for sufficiency stage. And just a quick primer and reminder on sale and delivery. It's one or the other. It's not both. You can't get both for one thing of drugs. That's the general rule. But as this case also illustrates, this is not the case for trafficking. With trafficking levels, you can get trafficking by sale and trafficking by delivery. And because here the defendant not only conducted this transaction, but he brought the drugs to the scene for the transaction to occur, that was a sale, that was a delivery, that was also trafficking by transportation and trafficking by possession. Which is sort of the bigger point I wanted to make here. Again, practitioners know this, but you can traffic the same drugs in North Carolina all these different ways, like Jesse's blog post points out. And remember, attempts and conspiracies in North Carolina are typically a level lower. That is not the case for Chapter 90 drug offenses. Under GS 90-98... Attempts and conspiracies are punished at the same level as anything else. So weird wrinkle there with conspiracy. Conspiracy to traffic is going to be treated just like trafficking, but attempted trafficking because of case law effectively attempted trafficking takes it out of that mandatory minimum at least. Weird, but in general, conspiracies and attempts treated the same. This is a very harsh rule, and I think defenders should think about challenging it as a double jeopardy issue or as an Eighth Amendment issue. Maybe both, right? On the front end, it's an argument that, hey, I'm being double, triple, quadruple punished for the same, what's effectively the same act. And on the back end, to the extent these are being run back to back to back to back, maybe that's a grossly excessive punishment. Because I'd note, you know, the rule is different in federal court. If you distribute drugs in one transaction, that is generally one distribution offense. That is the case law in North Carolina is against defendants on this issue. So it is a preservation only kind of argument, but I think that is an argument maybe worth preserving that, Hey, this seems like it offends double jeopardy principles. And only two of the four trafficings here were run consecutive, but that's still quite a lot of time for one pile of drugs and one transaction. And maybe that is an Eighth Amendment issue at the end of the day. I don't think we're likely to see North Carolina courts bite on this anytime soon, but you never know what a court might do in federal habeas. It's worth preserving those federal constitutional issues for post-conviction proceedings down the road and in case something changes at some point. This issue is not present in this case, I don't think, but there's another potential issue that occurred to me with trafficking convictions when I was reading this case, and I thought that might be worth mentioning as well. Again, here it was trafficking by sale of heroin, trafficking by delivering heroin, then trafficking a mixture of heroin, and trafficking a mixture of heroin by possession. They probably just could have said heroin as to all of these, I think, because of our mixture rule in North Carolina. If it's one gram of heroin and 27 grams of baking soda, that's 28 grams of heroin under our case law. So I didn't see the reason to distinguish between the heroin and the mixture. And it's also weird. I thought that the CIA here ordered fentanyl, but I guess this was a mixture of heroin and other substances, or maybe it was a mixture of heroin and fentanyl. I can't really tell. that question like, why are they charging? This is a mixture here. What's different? Why not just call it heroin? That got me thinking about this. You usually, because of that mixture rule in North Carolina, it has two sort of applications. One that we just covered, if it's a little bit of controlled substance and a little bit of non-controlled substance, it all is weighed as a controlled substance. The other harsh thing about our mixture rule is that if it's two different controlled substances, let's say cocaine and heroin, that can be treated as all heroin and as all cocaine. And that's typically how the mixture rule would work. So if I have heroin and cocaine in a bag, I can be found guilty of possessing the heroin and the cocaine. If it's sale of those substances, I could be convicted of selling both the cocaine and the heroin. Even at the trafficking level, if we're talking about different sort of categories of drugs, anything other than purely opiates, opioids, opium, I think we still get there as well. Let's say this heroin in this case had been a mixture of heroin and cocaine. We see this gentleman getting four counts of trafficking for the heroin and heroin mixture. But if that had also contained cocaine, the way I understand the law is that you could have tacked on four more trafficking charges for the cocaine in the bags. The question comes up, though, often, what about when it's a mixture of opiates or opiates and opioids? Let's say this was a mixture of heroin and fentanyl. Both things fall within the category of opiates and opioids. It's kind of a weird thing. Like I said, I mean, if it was cocaine and heroin, you would have distinct drugs supporting distinct charges. But we broadened our trafficking opiates, opioids law a while back to make sure really that we were covering that it was applicable to sort of weirder and newer synthetic opioids that were coming out all the time. And this was really in response to the fentanyl crisis and fentanyl derivatives that were popping up all over. We broadened it so that it now says, I really think there's just one crime of trafficking in opiates or opioids. If you go look at 9095H4, that's the provision on trafficking opiates or opioids. it says any opiate, any opium, any opioids, or any mixture thereof. And so I think that this creates a little carve out from our general rule that different substances equate to different crimes. Here, specifically in regards to trafficking, because any mixture is covered, I think a single mixture containing different opioids or opiates is still just one offense of trafficking in opiates and opioids. I often get asked by prosecutors about this question and that's my best advice to them is just call it trafficking in opiates and opioids and you don't have to worry about how many different mixtures or is this derivative covered or whatever. I think it's just one offense. You can still commit that offense different ways like we saw here. So you might have fentanyl heroin mixture And you sell it, you deliver it, you transport it, you possess it. Those are all separate ways that you can be convicted of trafficking. But it wouldn't be one trafficking for each method of delivery for the heroin and another set of charges for the fentanyl. It's all one bag. I think that's the best way to charge it. I think that's the easiest and most straightforward way to understand the language of the statute here. So something else to keep in mind when you're dealing with these opiate opioid trafficking cases is beware the charge of a combination of opioids or opiates. Again, I think this was an effort to broaden our trafficking law, but it had this probably unintended effect of carving out an exception from our otherwise general rule that a mixture of two substances is two separate offenses, each equating the total weight of the mix. That's a bit of a digression. I'm sure you all know what I wanted to talk about here was the marijuana identification evidence issue. Now, just to recall, the detective here testified to his belief that based on his training, this was marijuana. And you had a lab analyst testify at least that the substance was cannabis with THC, but she couldn't be sure it's not hemp. Again, not clear to me she ever actually opined that it was marijuana. I think that was certainly the import of her testimony, if not the explicit statement she made, but she did qualify it to be fair. there's no objections to this on appeal the defendant argues hey we think this was plain error the judge should have just kept this out even without an objection or it was so improper to let this in that it should be overturned on appeal even without the defendant having objected we've talked about plain error on the show before it's not where you want to be as far as being an appellate lawyer or a defendant on appeal it's a much higher standard for you and burden to meet And the defendant here loses on these challenges to the lay opinion by the detective and the expert opinion by the analyst. They go through the rules here, you know, proper lay opinion under Rule of Evidence 701 has to be rationally based on the perception of the witness and it has to be helpful to the jury in determining the facts of the case. Of course, the state has the burden to prove the identity of the controlled substance beyond a reasonable doubt. Hey, our pre-hemp case law says the officer opinion, if they're trained to recognize this stuff, is enough. Well, the defendant here is arguing this is not rationally based on the perception of the reality of hemp and marijuana in our state, and it's not helpful to the jury. The officer can't know by looking at it. The court, again, just sort of points to pre-hemp older case law. The defendant's saying, that law doesn't make any sense anymore. The court of appeals says, we disagree. We know about state v. ward, and ward says you've got to prove the chemical composition of a controlled substance with a lab or some other reliable method. But Ward is a 702 case. It deals with expert testimony. And here, this is lay testimony under 701. And we've always held that an officer can identify this stuff by sight or smell. And that's our law. We're sticking to it. I thought, troublingly, the court went out of its way to say, not only was this not plain error, it wasn't error at all. Which seems... to foreclose any kind of challenge to this type of testimony under Rule 701. The opinion doesn't quite come out and spell it out, but I think the pretty clear import is that our old case law on this stuff remains good case law. We, the Court of Appeals, are not going to overrule it. We are not changing this unless the North Carolina Supreme Court tells us we have to. We're not going to step out on a limb and question how much sense the lay opinion evidence identifying something as marijuana makes in the age of legal help. Now, if you've followed this podcast for a while or if you've been reading my cannabis updates over the many years I've been doing them on the criminal law blog. This is an issue I thought might have some legs and something I've been curious to see reach the Court of Appeals and see what they do with it. I think, unfortunately, from the perspective of the defense, the Court of Appeals here says, well, this is just like the probable cause issue. Nothing has changed. In other words, hemp legalization doesn't. did not alter any of these calculuses. Well, what about that lab analyst testimony? This is a 702 issue, right? She was admitted as an expert under rule of evidence 702. And the defendant here is arguing this testimony is not based on sufficient facts and data. It is not the product of reliable methods. And these methods weren't reliably applied by the witness to the facts of this case. The testimony fails all three parts of rule 702, in other words. Again, pointing to State v. Ward and saying there has to be a valid scientific analysis to ID a controlled substance under 702. That's what Ward says. That means they need a scientific analysis that would hold up as good science. The thinking being that controlled substances have a very specific definition under Chapter 90, and to properly admit the identification evidence, you need more than just visual ID. Now, important side note and caveat, the North Carolina Supreme Court in Ward did not limit their opinion to everything but marijuana. They didn't carve out marijuana. They said everything needs a reliable scientific analysis or other reliable method of identification. But the Court of Appeals has repeatedly held that marijuana is different. Well, that may have been true from a logical perspective pre-hemp legalization, but post-hemp legalization, it's really hard to see why suspected marijuana would be treated any differently than cocaine because you do now need a very specific type of chemical analysis in order to scientifically distinguish it from marijuana, one from the other. The Court of Appeals, again, just points to old case law that predated the legalization of hemp and has said, we don't think they need a chemical analysis of marijuana at all. And the fact that they did so here, that was overkill. They did a lab here. We recognize this lab was not sufficient to distinguish marijuana from hemp, but we think it was a reliable method of identifying marijuana. This lab analyst testified that she followed proper lab procedures. She was an expert in drug identification. She looked at this stuff, she tested it, and she identified it as cannabis with THC levels not determined. That was reliable, according to the Court of Appeals. Now, Couple of thoughts. I'll at least give it to the analyst. This is a little bit more nuanced and accurate of an opinion, an identification opinion about the substance than the officer gave, where here the analyst at least acknowledged the limitation and the ambiguity in her test result. And again, it's not clear to me she even said this is marijuana. I think it was more this is cannabis containing some level of THC. But the Court of Appeals, again, looks at it and says this was a reliable identification of marijuana, flat out. It's not as clear to me. They said it's reliable, and they said it's not plain error. They didn't quite go as far as they did with the detective's testimony in saying this isn't even error at all. But I think a pretty fair reading of this would be, yeah, this wasn't any error either. From a scientific, again, and logical standpoint, this is kind of hard to wrap your head around. They didn't test the levels. The analyst acknowledged she wasn't sure. So how is that reliable? I'm at a loss to explain that. It's reliable because the court said it is. I think what could a defender do differently here? I think building out a record with a pretrial voir dire hearing on the admissibility of this lay and opinion evidence could have made a difference. I don't get the sense that that was done here. I think these objections were just being made in real time. And again, mostly there weren't objections to it. The defense counsel knew to question the analyst about the hemp issue and knew to ask for the jury instruction, excluding hemp and hemp. But there was no objections at all to any of the lay testimony. And it doesn't sound like there was really any objections to the analyst testimony. So I wonder if that might get you to a different result had had there been a robust pretrial hearing. on the admissibility of this testimony, perhaps with defense counsel presenting their own evidence from their own expert to really lay out the science here, because we're not scientists and most of the judges aren't scientists. And I think that's fair to say when we're looking at these identification opinions with suspected marijuana, this is not good science. However, whatever else you want to say about it. And I think some trial judges may be willing to exclude this stuff on the right record, rough and notwithstanding. But I do think the defendant is sort of starting from behind and really needs to come forward with robust evidence, whether that's just a vigorous cross-examination of the expert on the limitations of their testing, a vigorous cross-examination on the detective role, on the limitations of their ability to rationally perceive marijuana from hemp with a site or olfactory inspection only. But even if you can't keep it out altogether, you may be able to accomplish sort of limiting the scope of it so that just like you might try to do in a DNA case or a firearms ballistics case, case, there's a real risk that the witness will overstate their conclusions or overstate the accuracy of their testing. And I wonder if more could have been done here to say, detective, you can testify that it seemed to be marijuana, but you can't call it marijuana. And same thing with this analyst. maybe you can at least cabin their opinions and then get out on cross that you really don't know. You know what hemp is, you know, hemp's everywhere. There's how many hemp stores in the state, how many hemp stores in the county. that might be a way of going after the admissibility of this stuff. But as a last resort, we've talked about this on the show before, all of those questions that you might ask the lay or expert witness who's identifying something as marijuana in a pretrial admissibility hearing, those same questions should be asked, can and should be asked on cross-examination in front of the fact finder. They can go to the weight of the evidence, and you can argue to the jury once you've brought those questions out on cross, hey, they haven't proven the identity of this substance beyond a reasonable doubt. They haven't even proven it by a preponderance as far as you're concerned. Don't give that opinion evidence any weight. This is a reason to acquit my client on the marijuana charges. But again, bad facts here. You know, it doesn't help if you're also selling heroin and fentanyl with the suspected marijuana. what it's worth, still, I think, some fight to be had. Of course, as we talk about in just about every show, you've got to preserve these issues by objecting at trial and stating the grounds. I think the takeaway from Ruffin is that We've been waiting on an answer to what's the court going to do with these evidence challenges for lay opinion testimony and expert opinion testimony where there's no accurate, reliable lab result. And the Court of Appeals has answered that question by saying nothing has changed at all. We can continue applying the law as it existed before the legalization of hemp. And that's that. I'd like to see this defender seek... Further review at the state Supreme Court, and if so, we'll be keeping an eye on that. And maybe it's possible there's a different result when you're not on plain error. Certainly, I would like to see the case where there was really a robust challenge to this stuff and everything was preserved. But not a good sign for defendants on this question of keeping out what is seemingly unreliable and irrelevant opinion evidence. But that's not all. As we mentioned, this case also had that jury instruction issue. And that's the last bit I'll say about Ruffin. But the defendant here asked for and received a modification to the pattern instruction for marijuana possession saying, ladies and gentlemen of the jury, hemp is not marijuana and marijuana is not hemp or hemp products. That's all that was added, but that's what the defendant requested, and the trial court obliged and gave that instruction. The defense counsel then agreed to the jury instructions as proposed by the court, and when the jury instructions were given, there was not an objection. On appeal, the defendant raises for the first time, we think it's plain error that the court didn't instruct on what does that mean, that hemp is not marijuana and marijuana is not hemp. We think the jury should have been instructed that they can only find something as marijuana if they are satisfied that it has more than 0.3% Delta-9 THC. In other words, the trial court should have defined hemp and referenced the Delta-9 concentration level because that's the only thing that distinguishes legal hemp from illegal marijuana. Court said, nope, that may be a thing, but it's not plain error here. You agreed to the instructions as proposed. You didn't object. You got the modification you wanted. We're not striking this down on plain error. Again, definitely does not rule out here that this might be error. preserve it, maybe a different result. I think that's a great suggestion. If there's one bright spot on this case for defense counsel, it is that you're probably entitled to an instruction in a marijuana case that hemp is not marijuana and marijuana is not hemp. And you probably could argue pretty compellingly for this definition of hemp to be included. Like And here's what hemp is. Hemp is any part of the cannabis plant without a concentration exceeding 0.3% Delta 9 THC. And that instruction, while it seems like a minor point, I think hearing that from the judge and having defense counsel be prepared to argue that to the fact finder and say, you heard what the detective said. You heard what the analyst said. You heard the ambiguity. You heard the limitations of this testimony. And the judge is going to instruct you that you've got to find that this stuff is marijuana and not hemp. And the only way you can do so is by reference to the Delta 9 THC levels. Where was the evidence of that, ladies and gentlemen? I think that not only an accurate statement of the law and something that you should probably be entitled to if you ask for it, but one that might make for some pretty compelling arguments in front of the jury. Again, don't think that happened here. As far as the jury instructions and roughing go, the court's just saying not plain error not to do that, to fail to do that. But a good reminder to defendants, like, you can probably get that. That's a good thing to ask for. There actually is even more interesting issues in this case that I'm not going to talk about if you want to review this. our law on what a low burden sufficient evidence is in North Carolina. There's a discussion in there about that. There's also an interesting sentencing issue where there was some discussion of a death by distribution case that this guy had pending yet to be tried in the same district. And the judge, whether the judge was relying on that improperly in sentencing him. Bottom line, he wasn't. Other issues in Ruffin, worth a read. Good case. Again, March 5th, Court of Appeals decision. But I want to move on to our other favorite topic on the show, guns. We talked about USV Hunt from the Fourth Circuit last episode. Hunt is 123F4th, 697, December 2024 out of the Fourth Circuit. That's where a panel of the Fourth Circuit basically shut down as applied Second Amendment challenges to the federal firearm by felon law. That is 18 U.S.C. 922 G1. As we discussed last episode, basically just felons as a class can be disarmed. There is no need for a case-by-case analysis. They join a couple of circuits, at least the eighth with that opinion. They are split from another couple circuits on that same question of like, do we have to go felony by felony when evaluating these as-applied Second Amendment challenges? Well, it's a funny thing because we just got our second big state court Second Amendment case. State v. Nance, or I don't know if it's pronounced Nanez, but it looks like N-A-N-E-S, Nance. February 19th decision from our Court of Appeals. That's COA 24-487 if you need it. We talked about our first big Second Amendment case in North Carolina on the show a while back. That was State v. Radomski. We covered it a few episodes back. That was a weapon on educational property case, and they found the weapon on educational property statute unconstitutional as applied to a homeless man with guns in the car. who was parked in a university-owned hospital parking lot. Kind of a lot packed in there, but I wrote a blog about Radomski. We talked about it on an earlier episode. That was really our first big Second Amendment case at the state level. Nance presents this challenge to the firearm by felon law, which, again, everybody's been waiting on. What are we as a state going to do with our state firearm by felon law? Are some of these unconstitutional as applied? I mean, as folks know, there's a restoration process where, you know, if you have an older nonviolent felony, eventually, I think 20 years, you can get your gun rights back. But with the exception of certain white collar crimes, you lose your gun rights forever short of going through this restoration process. And even that is a 20 year wait. Not the best test case as far as the vehicle here, because Mr. Nance is charged with murder and firing by felon. He brings a facial and as applied challenge to the firearm by felon law under the Second Amendment. The court points to another recent Fourth Circuit case that we discussed last show, US v. Canada, where the Fourth Circuit just flatly rejected a facial challenge to the federal firearm by felon law. saying there's going to be some constitutional applications of this law, even if it might be unconstitutional in some respects. But then they decided to hunt really, I think, in the same batch of cases, same month and said, and we don't have to do a case by case on felonies. They can also basically can never win an as applied challenge. Well, here our court of appeals pointed to that Canada case for the proposition that, well, of course, the facial challenge to our state farmed by felon has to fail. Surely it can be applied constitutionally to some defendants on some set of facts. But it's interesting they didn't point to the Hunt case. where the Fourth Circuit shut down these as-applied challenges to the federal firearm by felon. Instead, they went through the analysis, which I think means we're taking the approach similar to the circuits that are in split with the Fourth Circuit on this question. Basically, we can go case by case and felony by felony when determining whether our state firearm by felon law violates the Second Amendment as applied to a certain person. Here, they had no problem concluding that the law could be constitutionally applied to this defendant. The predicate felony for his firing by felony charge was felony animal cruelty. And the court said, maybe that's a violent offense. We don't know. We're not going to jump into that. But in fact, it was an extremely violent killing of the family dog. It was horrific. And folks know we talk about very explicit things on this show sometimes. I'm going to just spare you all the details of that animal cruelty case. But he killed his family's dog in a horrific way. That was how he got the... animal cruelty charge. And they said, this is a pretty violent guy. I mean, just looking at that case, that wasn't embezzlement of the pizza guy or something. It wasn't obtaining property by false pretense for some minor financial crime or something like that. This was a very violent act. And it turns out he had a couple of other felonies under his belt. But even more than that, He had assault on a government official, misdemeanor assault on a cop, basically, two simple assaults, one assault inflicting serious injury, one assault on a handicapped person, and some other assault and batteries on his record. This is also a murder case where he's charged with using a gun to shoot someone to death illegally. This guy has a demonstrated history of violence towards others. Disarming somebody like Mr. Nanez is completely consistent with our historical tradition. of taking guns away from dangerous people. The firearm by felon law is constitutional as applied to this defendant. But again, not citing to that Hunt case out of the Fourth Circuit, not referencing it. The sort of undertone of the case is that might be a different result where the guy's not such a violent felon. Keep in mind, I think that just leaves open the possibility these as-applied challenges to our firearm by felon law are still alive and well for the time being. Again, this is the kind of case that I could expect the Supreme Court might want to weigh in on. There's nothing harmful to the state in this language, and they declined to get involved in Radomski. But I keep expecting one of these days, our state Supreme Court is probably going to want to weigh in on these Second Amendment issues. But interestingly, NAMS raised a state constitutional challenge, too. We have a provision in our state constitution, Article 1, Section 30, that also protects the right to bear arms comparable to the Second Amendment. And the court here also had no problem rejecting that. They looked at the factors from the Britt case. That is where somebody sought declaratory judgment to declare the firearm by felony law unconstitutional as applied to them. But they did so via a civil declaratory judgment action. And they said, we got to look at the Brit factors. What kind of convictions does he have that are disqualifying him? Are they violent? How long ago were they? Does he have a history of being law abiding since the time of his felony? Does he have a history of responsible gun ownership? I mean, in Brit, it was like a single person. quizdy cocaine or marijuana conviction from 20 years before. For a while, he was able to have guns and he used them in a law abiding way. None of his conduct was violent. He lived a law abiding life. And when the law changed and they said, you can't have a gun as a convicted felon, no matter how long ago it's been, he gave up his guns, basically complying with the law and then seeking to civilly get a declaration. I can have my guns back, right? So this guy fails on every count. His felonies were much more recent. He actually had three total felonies. That animal cruelty was not a nonviolent felony, whatever else you want to categorize it as. And he has all these violent misdemeanors. He had other misdemeanors in addition to those ones I rattled off. all of this was way closer in time there was no history of responsible gun ownership here in fact the only evidence of this guy's gun ownership was that he bought this gun used in this murder he took some pictures of himself holding it and pointing it and posted those on social media then he went and used it to commit a murder that's not exactly a history of responsible gun ownership but Maybe someone else will meet this Brit test for a state constitutional challenge for the right to bear arms, but not Mr. Nanez. Big takeaway for defendants is you're not going to win the Second Amendment as applied challenges to our family. I fell in law. If your guys got a record like this and is, you know, doing awful things with his firearm and committing other violent acts. Really, I think whether felony or misdemeanor level, of course, the ban only kicks in with a felony, but you might have a nonviolent felony. But if you have a bunch of violent misdemeanors, that's probably not helping you any. The best news is that these as-applied challenges to our crime by felon law remain live and looks like we are taking the felony by felony, case by case approach. And just a reminder, when you bring these, bring them under the Second Amendment as well as under Article 1, Section 30 of the state constitution. All right, our second to last one, I want to talk about State v. Watlington. This is another March 5th case out of the Court of Appeals coming to us. from Guilford County. This is a joint trial of Watlington, who's being tried on murder, first degree murder, five counts of attempted murder, four counts of alphabet assault, that being assault with a deadly weapon, intent to kill, inflicting serious injury. Six counts of felony hit and run, resulting in serious injury or death. And I think that's it for Watlington. Her co-defendant, Felton, is charged with being an accessory after the fact to each of those felonies. It was 16 in total that they're starting out with. It's 3.30 in the morning. Nothing ever good happens at 3.30 in the morning. This pair pulls up to a gas station. Felton is driving, Watlington is the passenger, if I remember it right. They pull up by the gas pumps and bump another person's car in the process. So Felton gets out. These are both women, by the way. This woman, Felton, gets out of the car. and starts jabbering with the somebody, I guess, involved with the car that they bumped. This escalates. They're sort of getting really animated. People are starting to notice. I guess people are hanging out at this gas station or it's I don't know what's going on, but apparently there's a bunch of people around at this gas station in Greensboro at three thirty in the morning. Watlington, the passenger, tries to calm Felton down, but she can't. More and more people come over. They're starting to watch this argument. After a few minutes, it becomes physical and Felton starts fighting with another woman. Then multiple people start fighting with multiple people. So it's just a brawl going on at this gas station in the middle of the morning. I left this detail out, but these two women, Watlington and Felton, rolled up in this Explorer. They had two cousins of Watlington in the backseat, two different cousins who were sisters, I believe. One of those cousins tries to get Felton away from this fight. Felton is the one that's really gotten all animated, and that's where the first fight broke out was with Felton. And she tries to get Felton into the car, and she bumps her own head. The cousin bumps her own head in the process of trying to get Felton into the car. She says she felt lightheaded, and so she just lays down on the ground right behind the Explorer. Other people go over to check on her, including her sister, the other cousin. Around this point, there's a big group of people behind the Explorer. Watlington gets into the Explorer, puts it in reverse, and hits the accelerator at 99.5%, basically full steam in reverse, running over the entire group of people, including her two cousins. She backs completely over this crowd of people running over body parts and ultimately killing her cousin in the process. She pauses for eight seconds, puts it in drive, and runs back over them all again going forward. Crashes and drives off. Felton gets in the car and they take off. The cops find those two just a little ways down the road, walking down the street. Felton, I think, much to her bad luck, has the car keys in her purse. And again, Watlington is the one who drove over these people, but Felton has the keys. Cousin one is dead. All the other five victims really have horrific and mostly permanently debilitating injuries. One person didn't wake up for 26 or 27 days. TBIs all over the place, broken necks. These weren't light injuries, to put it very mildly. Wetlington is convicted of felony murder. Jerry comes back four counts on that alphabet assault, four counts on felony hit and run causing serious injury. Felton is convicted for being an accessory after the fact to each of those felonies being 11 total, so a little bit less than what they were charged with, but enough to give them, in Wetlington's case, life, and in Felton's case, I'm imagining quite a bit of time in prison. The opinion didn't mention the actual sentences. There's a really interesting felony murder issue in this case regarding whether that assault with a deadly weapon inflicting serious injury can be used as a predicate to felony murder. Turns out it can, but only in certain instances. We may come back to that in another episode, because I think I need to digest that a little bit more. But I wanted to focus on the hit and run and accessory issues. accessory after the fact issues. So here, the driver got four hit and runs, one for each victim, basically. The essence of hit and run in North Carolina is basically knowingly leaving the scene after you know you've been in an accident. Of course, punished at a higher level for when there's injury or serious injury or death. But the statute just says a crash resulting in death or serious injury to any person. If I leave the scene after one crash, when I've injured a bunch of people in that one crash, the question becomes, is that one hit and run or is it one hit and run for each victim? In other words, what's the unit of prosecution for hit and run? And I think the court rightly here says, well, that's kind of ambiguous. It just refers to any person. What does that mean? One person? Does that mean more than one person? Is it one for each or one for all? Well, when a statute is ambiguous like this, the rule of lenity applies, which means we're going to construe the statute in a way that's most favorable to the defendant. And we've seen this in other contexts. The court recounts those other contexts. Decimation of obscene material, right? Giving out obscene material. Is it one count for each obscene image or is the act of decimating obscene material include multiple images that are decimated at once? The court way back in the day said one count, even though there's multiple images, the rule of lenity applies. The statute's ambiguous. We think even if there's 50 images, it's one act of disseminating them. We see this in the gun context. State B. Garris, our firing by felon law. If I have 10 guns and I'm caught with them at once as a felon, that's one count of firing by felon. And I see that mistake still a lot to this day where a person has three guns, they bring them before the magistrate and ask for three counts of firing by felon on a bond on each. That's wrong. Multiple guns in one incident and transaction possessed by a felon is one count of firing by felon. It's one per incident, not one per gun. We saw this a few years back in a case called State v. Conley with our weapon on educational property statute. Same thing. If I have one gun or if I have 50 guns, if they're all together at the same time and i'm possessing them on educational property in one instance that is one count of weapon on educational property not multiple counts the same applies here you can't get to four felony hit and runs it's each time you leave the scene of an accident It's interesting, though. I mean, here they still said she could get two, one for backing up over the people and then one for pulling forward. You could probably debate that. She still only left the scene of the crime once. But the important takeaway for defenders is that it's the number of accidents at least. not the number of victims. I think you could even argue that it's really the number of acts of leaving the scene knowingly, not necessarily accidents. Again, bad facts, bad law. I don't think it helped that this was so grotesque of an act and so seemingly premeditated by pulling back forward over the people involved. multiple victims in one crash generally is going to be one felony hit and run. Here, the court said there were two crashes. So when the single act of leaving those two crashes, that amounted to two. Compare that with the co-defendant, Ms. Felton, who gets all these accessory after the fact charges. They said that is totally different. The unit of prosecution is defined by the law as each felony that you're aiding or assisting with after the fact. So every felony you're helping with, you can be convicted of being an accessory. She gets no relief. Wetlington gets a couple of her felony hit and runs reduced on appeal and a resentencing on that, but it's not going to help her because she's doing felony murder time. Interesting intellectual point here. Felton also, Wetlington got convicted of one count of misdemeanor hit and run. And the jury here convicted Felton of being an accessory after the fact to misdemeanor hit and run. Well, our accessory after the fact statute, GS 14-7, talks about being an accessory after the fact to felonies. does not refer to misdemeanors, seemingly doesn't include misdemeanors. And it's funny, I just taught a session to magistrates where we went over theories of liability and general crimes like conspiracy attempt, accessory after, that sort of thing. And that's one question that comes up is like, what about misdemeanors? Is there such a thing as accessory after the fact to a misdemeanor crime? The court raises this on its own and drops a footnote in the opinion saying, hey, we noticed that she was convicted of being an accessory after the fact to a misdemeanor. And our statute doesn't talk about such a thing. We're not sure it exists. But defendant didn't argue that. It's not raised. We're not deciding it. But that's something else to keep in mind is if you're seeing a prosecution for accessory after the fact to a misdemeanor, You might want to think about challenging it. I mean, that works both ways, though, right? If I'm being charged accessory after the fact to some low level felony, maybe I want the option for the court to instruct on accessory after the fact to the lesser included misdemeanor offense. But an interesting point to think about, one probably that's not going to come up a whole lot. For what it's worth, that was Watlington and Felton. Really good issues in that case if you can look past the really horrific facts. All right, last one, folks. I know we're coming into the home stretch here. I want to just talk about an aspect of this State v. LaCure case. This is a little bit older. I'm not sure when this came out, but again, a Court of Appeals decision. These two men are convicted of first-degree murder. And during sentencing, the trial court orders that neither defendant will be permitted to participate in any type of educational or vocational programs or training in prison as a special condition of their sentence for a little bit more than the first two decades of their life sentences. trial court, and I quote, says, God placed it on my heart to tell you two that for the first 22 years of your sentences, you're not to think about engaging in any vocational or educational classes. This gets challenged on appeal and the court decides it on straightforward statutory grounds. I'll quote the court's opinion in Liqueur. Nowhere in our general statutes is there language providing a trial judge the authority to restrict a defendant's right to vocational or educational classes while incarcerated. Privileges and restrictions on an incarcerated person are determined only by the Department of Adult Corrections. So this is just not a permissible sentence. It's not a permissible condition or term of the sentence. There's a whole chunk of 15A, 15A 1340.13 through 17, lays out all the rules, the procedures, and the permissible punishments for a judge in felony sentencing, and this ain't one of them. So trial court exceeded its authority here. That condition is struck. Whether these gentlemen are gonna get to participate in an educational or vocational program for their life sentences is going to be up to DAC. And if I recall, they didn't remand this. They just struck that sentencing condition and said, go forth. This got me thinking, folks know I'd like to focus on the constitutional law issues. And I think there's a couple here. They didn't come up. They weren't argued here, as far as I can tell, or certainly didn't make it into the court's opinion. But this raises Fifth and First Amendment issues. The Establishment Clause of the First Amendment prohibits the government from endorsing one religion over another. The Due Process Clause of the Fifth Amendment protects a defendant's right to a fair and impartial judge. And if a judge starts expressly basing their decisions on a belief that God or Buddha or Allah or Zeus told them to do something in court, I think both defendant's due process right and defendant's First Amendment establishment clause rights are being implicated, and those constitutional grounds should be raised, objected to, in addition to these statutory grounds. Not something argued here again, but something to keep in mind. And look, It's different with probation, y'all. Judges have a lot of leeway to come up with sort of wild and creative conditions on probation. Jamie Markham did a great blog post some years ago about creative and unusual conditions of probation. You might say you're not to work in this field after you defrauded somebody working in this field while you're on probation. Certainly fine to say no contact with the victim while you're on probation. Don't drive after midnight. Those are all fine. Some probation conditions that have been struck down as improper were, hey, you're temporarily exiled from the state. You've got to withdraw your appeal in some other case. Or you got to pay the police for continued enforcement. So even with probation, there's a line that they get to where they exceed their authority. But note, much more leeway with probation. When you're talking about imposing conditions on a prison sentence, that is DAC's job. And in any event, I don't think religion should be coming into it consistent with the federal constitution. And this came up in a recent consult, I'll just mention in closing, where the judge had imposed as a condition of the judgment in a second degree murder case, but I think involved a vehicular homicide, that the defendant was never to operate a motor vehicle for the duration of his natural life. Is that permissible? I don't know. I think that would be pretty challengeable, though. It would be one thing to say you're permanently suspended, certainly one thing to say you're not to operate a motor vehicle during your periods of post-release or probation after you've served your second-degree murder time, but to say you're never authorized ever again in your life, no matter how much time goes by, no matter what kind of rehabilitative efforts you've undertaken, you're never allowed to get another license. To me, I think that's a question for the DMV and not the trial judge, and they probably exceed their authority by imposing a lifetime ban. Folks, that is it for today. I'm happy to be back in the studio so soon again. A big thanks to studio extraordinaire Paul Bonner as usual. Thanks to my associate director of public defense education, Monica Yelverton, for all of her logistical support. Shout out to my brother, David Dixon, for composing our dope theme music. You can hear more of his stuff at David Dixon Music on Facebook or IG. Thanks most of all to you all listening. I really appreciate all the feedback I get. I appreciate the questions and suggestions I get. I'm hoping to be back in the studio again. I love hearing from you. So please, if you've got comments, feedback, whatever, I'd love to hear from you. You can always reach me at my email here at the School of Government. That's Dixon. at SOG.UNC.EDU. One more time, D-I-X-O-N at SOG.UNC.EDU. Check out my competitions podcast if you'd like, Turning States Evidence. I'd also like to plug my friend Danielle Blass's relatively new podcast called Play in D that covers pending court of appeals cases. Thanks, everybody. Hope to talk to you again soon.
Episode 18: NC Criminal Debrief
This episode discusses recent cases decided by the North Carolina Court of Appeals on cannabis, Second Amendment challenges, units of prosecution, and sentencing issues.