[00:00:01.026] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. I'm Phil Dixon, a faculty member here at the UNC School of Government. This is a podcast dedicated to covering criminal law issues in North Carolina and beyond. I'm joined, as always, in the studio by my friend and colleague Paul Bonner on the ones and twos. we are going to jump right in because we've got, as usual, just a ton of stuff to cover. It has been a little while since we've talked about cannabis on the show, but there was a big development recently at the federal level in regards to hemp. Some listeners may be aware there was a government shutdown for a record 35 days this past fall of 2025. In order to fund the government, the U.S. Congress had to ultimately pass what's called a CR, Continuing Resolution, to fund the government. That still only funds the government through January of 2026. It was sort of a must pass bill from the perspective of the governing party. And late in the process, a provision was inserted into the CR that effectively, as best I can tell, bans almost all hemp products across the board. As listeners are surely aware, We currently define hemp as any part of the cannabis plant containing less than 0.3% Delta-9 or no more than 0.3% Delta-9 THC. That is the definition of hemp at the federal level. That is the definition of hemp at the state level. Under the CR bill, hemp will be redefined at the federal level to include the cap of 0.3 is now going to be expanded to include any and all forms of THC. So including predominantly, I think, THCA, THC acid. This is a very popular cannabinoid. that converts to Delta-9 THC when you burn it. But it is a very popular product because it effectively acts just like marijuana once it's smoked. But because the definition of hemp under state and federal law currently includes all extracts, derivatives, isomers, and acids, this is an acid of THC, it seems to fall within the definition of a legal hemp product. Not so under the new federal definition of hemp. So any and all THCs, including THCA specifically, and all THC isomers. These are your Delta 7, Delta 8, Delta 10 products. In no event can the total sum of THC exceed 0.3%. That is a massive change. It seems to me that it will shut down the current market for exactly those products, things like THCA, Delta-7, Delta-8, Delta-10, that are, in my estimation, primary drivers of the market. These are the products that people are sort of snapping up the most, or they're at least pretty high up on the list of the most popular products. That again, that's not how we do it under state law. Our state law has not changed. Under state law, hemp is still defined solely by reference to its Delta 9 THC level. But this federal change, it only takes effect next November. November 12th, 2026 is when the ban takes place. So to the extent there is no change and that the federal ban is in fact going to take place come next November, As a matter of federal law, these sorts of intoxicating hemp products will be outlawed. There's more, though. The bill also has a number of exclusions that say these products, they just do not count as hemp, period, regardless of any concentration amount. And that includes any natural cannabinoids that they naturally occur in the plant, but they are synthesized or manufactured outside of the plant. I think this comes up a lot because some of these products, things like Delta A, for instance, are it's not very efficient to extract it directly from cannabis. But you can sort of come up with the same compound at the end of the day through other means of synthesis. Any natural cannabinoids that are manufactured or synthesized outside of the plant are just categorically excluded from the definition of hemp, as are any products for non-naturally occurring cannabinoids, things that don't occur in a cannabis plant but can be derived from the cannabis plant. If you've been with us a while, I talked some time ago about an Anderson case from the Fourth Circuit that was really looking at employment law, but it dealt with a claim under our lawful use of lawful products statute as a matter of state law that whether or not the use of a quote unquote synthetic cannabinoid, a cannabinoid that does not naturally occur in the plant, but can be derived from the cannabis plant, whether that sort of counted as hemp or or was properly considered a controlled substance under federal law. And the court ultimately concluded it was THCO that they were examining there. And they said that is a derivative of products that can be derived from cannabis. The definition of hemp includes derivatives. So we think this is a legal product, a legal cannabis product. The plaintiff in that case lost for other reasons. But it was sort of a win for the hemp industry who had been fighting that fight with the DEA for some time about these non-naturally occurring cannabinoids that can be derived from naturally occurring cannabinoids. The new CR bill, again, will ban not only naturally occurring ones that are produced outside the plant, but also these cannabinoids that do not naturally occur on their own at all. It also imposes a limit of four milligrams combined for any THC in any product. Well, folks, even a normal CBD full spectrum product contains more than 0.4 milligrams of THC, including THCA. I think this could be unintentional insofar as that they're sweeping in products like full spectrum CBD, other non-intoxicating cannabinoids like CBN, CBG. But it's a big change. And if that wasn't cause for enough concern as far as the legality, the continued legality and availability of products like CBD that, again, are not intoxicating, but, you know, sort of people claim has some valuable side effects on the human nervous system one way or another. The statute also defines what it calls intermediate hemp products. It looks like it regulates those as well. And I think if I'm reading that correctly, that's sort of the in-between products that happen in the process of synthesis. So if you wanted to, by contrast to say full spectrum CBD, where you get a variety of cannabinoids, You could get CBD in pure form, CBD isolate. But the process of creating isolated CBD means there's some waste THC that's generated in the process. And I think that that may no longer be allowed under the bill. According to my friend Rod Kite, who works on these issues from the perspective of the industry, his opinion is that only hemp seeds and hemp seed oils will truly be safe as a matter of federal law moving forward. If that's true, and my reading of the bill is in line with his, That has potentially got, I think, serious economic consequences for the industry. This industry is probably somewhere in the realm of $30 to $40 billion a year in America. North Carolina is a big hemp state, a big hemp producing state. And with this change, we're potentially going to see, I think, some massive contractions, at least in the industry. There's a number of questions that this raises. Of course, as I mentioned, state law has not changed. So what does that mean? Can we still have a hemp industry within North Carolina? And the answer is, in theory, perhaps. But there's a number of variables. If North Carolina leaves its definitions unchanged, then hemp stores within the state can continue to operate in accordance with state law and presumably don't have to worry any more than they already do about enforcement of federal drug law by state authorities. And that's because state authorities typically don't enforce federal drug law. A lot of times our state and federal laws overlap, and sometimes state law enforcement officials work in tandem or in connection with federal law enforcement officials in a task force kind of situation. But generally speaking, you know, your local sheriff or police officer is not arresting people for violations of federal law and taking them before a federal magistrate judge. They only enforce state law, just like the feds are typically not arresting people for state law violations and taking people before a state judge. They are concerned with federal law in the federal court system. One question is, even if this ban goes into effect, Are the feds going to come down here and enforce this ban? Do they have the bandwidth to go after every hemp store in the country that's operating in accordance with state law just because it's now in conflict with federal law? That seems unlikely, but we did see a version of this early in the days of marijuana legalization where dispensaries were selling marijuana to adults in accordance with state law, but the DEA would occasionally come in and raid their store or seize all their products with or without charging them because it's still a controlled substance under law. There's always that link to interstate commerce for just about anything. Marijuana and guns both can be capable of affecting interstate commerce. That gives the feds their jurisdictional hook. If I was advising a hemp store owner after this ban takes effect next November, I would say there is a non-zero risk that federal law enforcement could still come arrest you, prosecute you, or seize all of your products as controlled substances because that's what they will be now under federal law, even if state law says something different. Of course, with marijuana enforcement, this was resolved eventually, I think by way of some kind of budget rider agreement in Congress where a deal was struck that said, hey, states, we will not spend federal dollars to enforce the federal marijuana law as long as you state operators are operating within your state's laws. So if you're operating pursuant to legal scheme in your state, the DEA won't come bother you because we're not going to spend our dollars that way. Marijuana remains illegal under federal law. You still get prosecuted if you're found on federal property with marijuana, but we're not going to go out of our way to go prosecute legal dispensaries in California or Colorado or wherever. The solution to this potential issue of what about if there's a conflict between our state hemp scheme and federal hemp rules, that could be one solution as Congress comes up with a similar agreement that says, Yes, federal law says this stuff is illegal, but as a matter of enforcement, we're not going to spend federal dollars on it as long as you're operating in accordance with your state's legal scheme. But of course, we don't have that yet. It remains to be seen if that would be passed. There will also be extensive lobbying efforts by the industry to kind of rein this bill in and have a more balanced approach to We've talked about before, you know, hemp industry advocates have supported regulatory measures. I mean, we don't have any regulation right now on the state or federal level, not so much as an age limit or any quality assurances. Advocates actually support those measures up to a point. They don't want to ban all of these products out of existence, but they agree that there should, they contend that there should be things like age limits, standardized testing, and you know, maybe place restrictions, amount and concentration restrictions. There's sort of support for that both on the side of regulators and hemp industry advocates. But with this CR resolution, Congress has really taken the lack of hemp regulatory structure at the federal level from zero, almost no regulation whatsoever, all that we care about right today, is the Delta-9 concentration. There's no other regulation really besides that. I mean, technically, there's some FDA regulations, but those don't seem to be enforced. they've gone from zero to 99 with what I think is probably a near total ban on these products. So I expect the industry will be pushing back and lobbying hard to find something closer to a middle ground as the impacts of the ban start being felt in especially, I think, hemp producing states or products where hemp has become very widespread and popular. We may see a stronger push or desire among Congress people to modify the bill. I mentioned you could just sort of agree not to enforce it. And it's always a matter of prosecutorial and law enforcement discretion where to spend their resources. So On one hand, going after hemp shops in a hemp legal state for violations of federal law would kind of be an easy target from the perspective of law enforcement. There's a lot of money you can seize. You can probably prove your case fairly easy that someone's selling these products in violation of federal law if that's what their whole business model is. But on the other hand, for many within the law enforcement community, those are perhaps not the most high value targets when the feds are usually prosecuting child pornography offenses, terrorism offenses, racketeering, organized crime offenses, cartel level drug smuggling, not your mom and pop hemp shop. But the question of whether and to what extent the feds would prosecute enforce this with a criminal penalty behind it really remain to be seen. But even putting aside the federal criminal law enforcement provisions for just a second, the more practical problems I think are the same again as what we saw in the early days of marijuana legalization where banks wouldn't touch the money that was generated from illegal dispensary because as a matter of federal law, they are subject to laws that say banks, you cannot knowingly take proceeds that stem from illegal activities. You're not allowed to money launder for organized crime or criminals. And if you know that the profits are coming from the sale of controlled substances, you aren't allowed to accept that money. So dispensaries in the early days of marijuana legalization had problems with getting bank accounts for their businesses. Like state law, there is a federal tax on controlled substances. To the extent you're making money now, even if it's legal under state law, it's still considered contraband under federal law, and your tax liability may have just changed in a big way as far as your federal tax liability. And likewise, this industry, I think North Carolina and many states where we produce a lot of hemp, we ship this stuff all over, not just within North Carolina, but sometimes abroad and certainly to other states. I think that will also become much more risky. if the federal law takes effect as written. I think in theory you could see hemp stores, the hemp market within states continue to operate. I think there would be some contraction and the risk-reward calculus, sort of the what am I really potentially facing here by choosing to engage in this business, is going to radically change. But a lot of questions about what that will actually really look like on the ground. I hope to write about this very soon. But just sort of a heads up for listeners, this was a major change. And again, it did not really go through normal legislative channels. It was tacked on to a bill to reopen the government at the end of the longest shutdown in record. It was not exactly vetted through committees and rigorously debated. A senator did speak up in opposition and try to get this amendment struck, but that was hardly a robust debate over the nuances of this bill. And again, I think it's very possible that as the real effects, just how broad this ban is, starts to get seen and felt by your hemp industry folks, as well as your just normal everyday consumers, you may see pushback in terms of a desire for something a little more permissive than a total ban. But that's the big news in cannabis law. Of course, we're still waiting on rulings from the North Carolina Supreme Court on the odor of marijuana cases. Rowdy, Shine, and Little, which we've talked about before on the show. I don't have any update there, just that, by the way, we're still waiting on a Supreme Court ruling as far as odor of cannabis and probable cause in the age of legal hemp. Moving on to another drug law issue, I wanted to briefly talk about our Good Samaritan Law in Chapter 90. I know we've mentioned this before. We've talked about our harm reduction immunity laws. We had a recent case, really the first case to meaningfully analyze the Good Samaritan Law, but the second to have addressed it at all. And I'm about to publish a piece on this on the criminal law blog. And I want to just flag it for listeners. So as you may know, we have a law that basically protects somebody who's calling in to report an overdose and for the overdosing person when certain conditions are met. This is GS 90-96.2. And so if a person calls to report a drug-related overdose, they are immune from prosecution for possession of any misdemeanor-controlled substance, any felony-level controlled substance involving less than one gram of the substance, and for possession of any drug paraphernalia. They're not immune for anything else, folks, right? If the person dies and they were the person that the caller distributed the drugs, they're still on the hook for death by distribution. If there's a kilo of heroin there, they're still on the hook for trafficking heroin. When it involves these small amounts, they're supposed to be immune from prosecution. There's several conditions. The caller here has to be seeking medical attention for a person who they reasonably believe is experiencing a drug-related overdose. They have to call 911 or law enforcement or EMS. They have to be acting in good faith in doing so, reasonably believing that they're the first person to call. They need to give their name to 911 or to law enforcement when they arrive. And of course, you cannot make this call while police are already executing a valid search warrant or arrest warrant or conducting some other legal search. And the evidence that you're being prosecuted for, of course, has to come from you making this report in the first place. There needs to be some connection between the caller making the call to report the overdose and the evidence leading to prosecution getting discovered. This is what was at issue in this case. What counts as a drug-related overdose? And that is actually defined in 1996.2 as, quote, an acute condition, including mania, hysteria, extreme physical illness, coma or death resulting from the consumption of or use of a controlled substance or another substance with which controlled substances have been mixed. that a layperson reasonably believes is a drug overdose requiring medical attention. When that's what the person is calling to report, they're supposed to be immune as long as it involves these smaller amounts. And the person experiencing the overdose enjoys the same limited immunity when these conditions are met. They do not have to provide their name to law enforcement upon arrival, presumably because they're having an overdose and that might be hard. but assuming they are otherwise seeking medical attention and all the other conditions are met, both caller and person experiencing overdose are supposed to be immune. And the statute is a little broader than just immunity from prosecution. It also says you shouldn't be arrested and you can't be revoked for violating conditions of pretrial release, probation, parole, or post-release supervision. It's not a crime on its own if this is all you have going on and you're supposedly immune. But the statute also, again, expressly provides that you're not immune from any other crimes that might be found during this. Whether you are entitled to the immunity or not, you don't have immunity for other things like more drugs, death by distribution, that sort of thing. I think we've covered a lot of that before. And I think we covered the legislative change that happened in 2023 at some point. Originally, this law was read and it's been around since I think it was originally passed in 2013 or so. But originally, it was only drug paraphernalia, misdemeanor drugs, and less than one gram of cocaine or heroin that left off fentanyl and fentanyl derivatives that are commonly associated with drug overdoses. And in 2023, the legislature amended it to say any controlled substance as long as it's less than one gram. I mentioned we've got two cases on this. One is Osborne, and that's way back in 2020. That case had some tortured procedural history. It made it up from the Court of Appeals to the State Supreme Court and back down to the Court of Appeals again. And on that remand from the Supreme Court, the Court of Appeals considered what kind of immunity is this? If a person claims the immunity applies and that presumably makes a showing that it does apply, does that mean the person cannot be prosecuted? Does it deprive the trial court of subject matter jurisdiction? Is this a jurisdictional type of immunity? Or is it a more traditional type of immunity where you got to raise it in court? It didn't come as a surprise to me. The Court of Appeal says this is a traditional immunity. It doesn't have anything to do with subject matter jurisdiction. You got to raise it or you waive it, like most arguments in the trial courts. But that's really the only message that we got from Osborne was, hey, you got to bring this up. You should make your argument as to when you think it applies in the trial court or it will be waived on appeal. Okay, well, that's like most things. But recently, October 1st, 2025, the Court of Appeals decided State v. Branham. And Branham here, he did raise this issue at trial. Someone called the police and said, hey, I see someone asleep in his car. The engine's running. I knocked on the window. Couldn't get him to wake up. So I'm letting you guys know. So police arrive. They knock on the car window and the man inside, the defendant, Mr. Branham, wakes up. As far as I can tell, that's it. Then there's no Narcan. There's no signs of overdose. They have EMS on scene and police ask him, hey, do you need medical treatment? Do you have any medical issues? No, no, I don't need anything. I don't have any issues. He's got some heroin or fentanyl and some drug injection supplies. It seems to be a small amount, but he is charged for the drug possession, the paraphernalia. He's a habitual felon, so that is tacked on as well, that he's achieved the status of becoming a habitual felon. he makes a motion to dismiss pretrial. You can move to dismiss. That is one of the grounds in the motion to dismiss statute in 15A is that you have immunity from prosecution. So the defendant here, I think smartly and rightly filed a pretrial motion to dismiss claiming immunity under the Good Samaritan law. He asked for an evidentiary hearing on it and received one. He testified at that hearing and said, well, I had just injected fentanyl right before this incident. I overdosed. I know I've passed out. Somebody must have given me Narcan because I'm still here. I remember vomiting when I woke back up. But no one else apparently saw any of that happen. Nobody else could corroborate that he had even vomited, much less that he had been given Narcan to revive him. The testimony from the officers on the scene was we knocked on the window and he woke up. I thought this was really telling. The defendant testified further at that hearing, I overdose all the time. And that just struck me because practically speaking on a common sense level, I don't think that's what a drug overdose is, right? You don't overdose all the time. An overdose is typically going to have some serious effects. A true overdose, people tend to not wake up ever or to truly need Narcan and then additional medical treatment. And that's where the trial court landed. The trial court just said, I don't think you've shown that you actually had an overdose. So I'm going to deny the motion. We had to get into interesting preservation stuff as well, because here the defendant then pleads guilty, but tries to preserve his right to appeal the denial of this immunity motion. Well, folks, that's not one of the grounds that you can appeal after a guilty plea. Following a guilty plea under 15A-1444, there are very limited grounds on which you can appeal. One of them is the denial of your motion to suppress when properly preserved, but most of the other ones just have to do with the nature of the sentence that's imposed. Just like you can't preserve a denial of a double jeopardy motion or a motion to dismiss for due process violation, after a guilty plea by inserting that language into a plea bargain, you can't do that with immunity either. So the defendant recognized this on appeal. His attorney on appeal filed a petition for writ of certiorari saying, even though we don't have a right to appeal this issue, we'd like you still to hear it. Hey, we don't really have any case law on this whole immunity thing. It would be useful for the court to weigh in. And the court agreed. They said, yeah, you don't have a right to appeal this. That's not something that can be preserved in appeal. And then the court has this whole discussion about whether the proper remedy here is to vacate the plea and send it back to the trial court. But at the end of the day, they're like, well, if we grant cert and review the issue on the merits, the defendant kind of still gets the benefit of his plea bargain, which was plead guilty and get the court of appeals to review the denial of your immunity motion. So they'd They do so by way of cert. Cert is always discretionary. It's never guaranteed. I think a good takeaway from this case for defenders is you can't do that. If you try out your immunity motion, you think it's strong, but the trial court denies it and you really want the issue reviewed on appeal. If you want to be sure it's reviewed on appeal, you're going to have to try the case out to verdict and lose and then appeal. There's possibility, I guess, of getting cert review on it, but I wouldn't hold my breath on that. And I think that is going to tend to be the rare thing. So they do reach the merits of this question. And again, they agree with the trial court. This immunity did not apply here because the defendant did not show he actually experienced a drug related overdose. There is no evidence that he presented of any acute condition like extreme illness or coma or death or hysteria or mania. I'll give you a quote from the Court of Appeals here. Defendant's evidence shows only his drug-induced unconsciousness, not that the caller reasonably believed it resulted from drugs. defendant testified that the first responders gave him Narcan, but the agent's ability to quickly awaken him by tapping on his car window indicates a degree of unconsciousness far short of a quote-unquote acute illness. Based on his training and experience, the lieutenant testified that individuals suffering from an overdose are usually sweaty, clammy, cyanotic, and the defendant showed no signs of that. Now, I can't say I was shocked by this. That did not sound to me like very compelling evidence of a drug overdose. One of the other big takeaways from this case is like defend it. Not only do you have to raise this in the trial court under Osborne, it's definitely your burden to show to the trial courts, I think probably just to their satisfaction, that an overdose actually occurred and that you meet the other requirements under the law. I hear about this a lot. I've heard anecdotally that some attorneys in some counties of the state have advised people both about this law and about the Safe Needle Exchange Program laws, that those laws just don't apply in their county or that that's not something that is going to work in their defense. And I strongly encourage defenders to resist that kind of attitude and assert these immunities. when there's a potential for them to apply. And I think you do exactly what the defendant did here in Branham, which is to file a pretrial motion to dismiss for immunity and request an evidentiary hearing. I mean, if you can show the prosecutor, I think, to their satisfaction ahead of time that, yeah, this immunity should apply, they can always just toss the case on those grounds without requiring a hearing. Because I have to think in some cases, and perhaps many cases, it's kind of gonna be clear that an overdose happened. When first responders do have to revive the person with Narcan, and they've documented those facts, and the person seems to otherwise meet the requirements of the law, you've got a pretty good argument both to the state on the front end and to the trial court on the back end that your defendant is immune. But when there's a dispute about it, I think the defense has to be ready to present evidence. And Branham's an indication that the defendant's bare-bald assertion is not probably going to be enough. Again, when there's undisputed evidence that an overdose occurred, maybe you just call the EMT, maybe you put on the defendant and that's good enough. Where the signs of overdose are more debatable, you might consider defenders getting some kind of expert witness to weigh in and say, yes, these are signs of an overdose, even if they're not what the officers might consider typical signs of an overdose. But again, I have to say, reading the facts of the case and the testimony of the defendant here, I think he just passed out, and that didn't sound to me like an overdose. And if you think you overdose all the time on drugs, you probably don't really understand what an overdose is. Please know you need to advise your clients that this law exists. You need to assert it. There was a sort of line in that Osborne case from 2020 that I mentioned that said, if you didn't raise this at trial, maybe you can raise it in post-conviction in an MAR claiming ineffective assistance of counsel defendant. but you're not going to get help on direct appeal. So two points there. One is it could be, I think, ineffective assistance if you don't inform your clients properly and raise this at the trial level when it potentially applies. And finally, again, to return to the preservation point, just know that you can't plead guilty and preserve this as an issue for appeal on direct appeal. You might be able to get a cert review, but the better course, if you really think you have a strong motion and you want the appellate division to review it, is to try the case out to verdict, and then it will be preserved by operation of law. Next up, I want to cover State v. Wilson. This was an October Court of Appeals decision out of Wake County, and it deals with the Rule of Evidence 408. This is offers of compromise. Rule 408 says, evidence of offering or promise to furnish a compromise or accepting or offering to accept some kind of consideration as a compromise of a claim that is disputed as to validity or amount Those offers of compromise are not admissible to prove liability of either the claim or the amount. Here, the defendant was in jail awaiting trial on some serious charges. It was attempted murder, your associated alphabet assaults, firing by felon, related charges. He was involved in a shooting at the local Dollar General. And apparently he thought, if I offer to help the police, maybe I can get out of jail. So while he's sitting in jail waiting pretrial, he sends law enforcement a letter, asks for help to get out of custody. He says, yes, I shot a gangbanger at the Dollar General. And that's the crime he's sitting there for. That's what he's charged with. But officers, I'm willing to give you up as many meth dealers as you like. I just need your help in getting out. The DA gets a hold of this. This letter gets admitted at his trial. The defense objects to it and says that we think that was an offer of compromise under 408. It shouldn't be allowed in, but the trial court overruled it. It comes in. I hadn't quite seen a sentence like this in a minute, but it looks to me like the defendant got convicted of just about everything under the sun. I think his minimum sentence ended up being somewhere in the range of 650 months. On appeal, this comes back up. He renews this argument that this letter shouldn't have been admitted. That tainted my trial. I should get a new trial. The Court of Appeals looks at this and says, well, hey, you know what? There's actually, there was once a split among the federal circuit courts of appeals about whether the federal rule 408, and it's the same as ours, officer of compromise, does that apply in criminal cases? But in 2006, the federal rules of evidence were amended and they made it clear that 408 can apply in certain cases, in criminal cases. Even there, though, there's a carve-out that says if the defendant himself is making statements directly to government agents about his case, That's not a 408 issue. That's not an offer of compromise. That's going to be admissible in the criminal case. Here, they said, but we haven't done that. We didn't ever amend our rules. There is no case ever in North Carolina that's applied Rule 408 to a criminal case. And further, we don't think there's any policy favoring such kinds of offers of compromise in criminal cases. 408, the court says, is about settling civil claims. It is not about criminal cases. Now, that line did strike me, right? We don't have a policy of compromising in criminal cases. Well, the system is built upon plea bargaining. One could see those things as compromises at the end of the day. So that line struck me as a little funny that there's no such policy in the state. But we also have our own rule on plea negotiations. That's Rule 410. I'll get to that in a second. So here the trial court is affirmed. They say, you know, we're really cabining the holding just to this specific situation where the defendant in a criminal case admits guilt to law enforcement. 408 doesn't keep it out. Contrast that with Rule 410. That's an inadmissibility of pleas, plea discussions, and related statements. 410 says evidence is not admissible in a criminal or civil case. You know, that language is not in 408. It just sort of vaguely speaks about admissibility. But here we say you can't use this in a criminal or civil case for or against a defendant. who either made a plea or engaged in plea discussions or who pled guilty and then later withdrew the plea. You can't use a no contest plea at all. And you can't use any statements made during the plea that's later withdrawn or any statements made in the course of plea discussions where they didn't result in a plea at all, but you were trying. So there's a narrow exception for sort of completeness if there's a statement made in the course of these plea negotiations that needs to be admitted in fairness in light of other evidence that's been admitted. I'm not sure when that would come up, but I just note that's what it says. But in general, statements made during the plea bargaining process do not come in. They could be used potentially against some other person, like a co-defendant, but it can't be admitted for or against the defendant. I would just note, though, for this protection to apply for defendants, the defendant has to have a reasonable belief that they are negotiating with the prosecutor. So statements to the trial court, asking for a plea in open court, that does not get you there. And usually statements to law enforcement, like Mr. Wilson did here, will not get you there. Of course, if the officer was acting as an agent of the prosecution, that might count, but there needs to be a reasonable belief that the defendant is actually engaged in a negotiation with the prosecutor. We've had a case that says, that doesn't mean just asking for one either. You know, if I admit guilt to the prosecutor and say, please give me a plea bargain, that's not a negotiation yet. That's just an offer and that probably will still bite you. So I think for defenders, it's just good to know you need to be the one conducting the negotiation. A common practice among experienced criminal defenders is to put this stuff in a letter or email in writing and label it. Plea negotiations protected by rule of evidence 410. I think that makes it the least likely that you're going to run afoul of this rule and somehow end up making some admission. And defendants themselves, I think, run a huge risk unless they are already really truly in the negotiating process with the state. So, interesting stuff. I don't think this is probably an issue that comes up a lot of the times, but I was just struck by this interplay of 4.8 and 4.10. No Rule 408 offers of compromise in criminal cases, but 4.10 does still apply when the defendant or his counsel is negotiating with the prosecutor or their agent. To wrap up quickly, I wanted to just quick hit this State v. Barthel case. This was November 5th Court of Appeals out of Avery County. We got a fighting words case that's got some juicy facts, I guess I would categorize them as. So Mr. Barthel shows up at an Avery County Board of Commissioners meeting. There is a public comment period that occurs during the meeting where folks are encouraged to express whatever they want to about the function of the government. And Mr. Barthel shows up in a pretty offensive t-shirt referring to protesting and women's genitalia. But that doesn't get him in trouble yet. He then stands against the back wall of the meeting room and unfurls a banner that contains the picture. I think of the opinion seemed to refer to one of the commissioners, but I think it was actually a town clerk. But in any event, there's a picture of either a town commissioner or some other town employee on this banner that Mr. Barthel unfurls. There's two phrases on the banner, one of which is that, hey, this person pictured on the banner is Avery County's most unprofessional employee. Okay, great. The other phrase, though, was, I'm no gynecologist, but I know a C-U-N-T when I see one. And, of course, it was uncensored. It was just the C word spelled out. So law enforcement jumps up immediately and approaches him and starts sort of trying to get him to take it down. and trying to grab him and remove him. Eventually, he resists and sort of pulls away from them and says, this is protected speech. I'm criticizing the government. Eventually, he's sort of brought out into the hallway where he continues to wrestle a little bit with the officers and As the elevator is coming up to take him back down to the lobby, there's some discussion of whether he's going to be allowed to leave. Are you commanding me to leave or are you merely asking me to leave? And if you're telling me I have to leave, I'll leave. But around this point, police arrest this man for both disrupting an official meeting and resisting arrest based on him pulling away from the officers as they tried to detain him. He tries these charges out. These are both misdemeanors. So he tries them out in Avery County District Court. Probably, I don't know for sure, but it sounds to me like he was pretty on top of his First Amendment defenses here. I can imagine that he raised these protected speech arguments in the district court level, but to no avail. He's convicted in district court, so he appeals to superior court for a jury trial, and there he renews this argument and moves to dismiss, saying, Judge, this is protected speech under the First Amendment. It does not fall into a category of unprotected speech. It's political speech. It's about the government at a meeting where we're invited to speak about the government. And my words might be crude, but they are nonetheless protected under the First Amendment. the judge rules against him and the jury convicts him of the charges again. So he appeals up, renewing this First Amendment argument and a unanimous court of appeals rules for him. So they said this is offensive, but it's not. It doesn't rise to the level of fighting words. And I'm not sure if we've talked about it on this show or not. It's something I've written about before. But the fighting words exception is probably just dead at this point. I mean, Brandenburg is was the original Fighting Words case, and sort of, is this likely to provoke an immediate violent reaction? But the doctrine has been watered down to the point of basically meaninglessness now, because the Supreme Court has never upheld another Fighting Words conviction in the 60-some years since Brandenburg, and that has included things like the phrases on the banners of the Westboro Baptist Church people, really, really offensive language, sometimes violent language. You can say a lot of offensive stuff, and as long as that is not accompanied by threatening action, I think you're typically going to be okay. The state, I think, also has the burden to come forward and show that this was not only a nasty word, but there was evidence this was likely to provoke an immediate violent reaction from the person hearing it. And here, the only person who reacted were the officers. It wasn't clear to me from the opinion, and the opinion notes this, whether the woman depicted on the banner was even present in the room. When that's the circumstance, it's very unlikely to be considered a fighting word to the extent there are even such things as fighting words anymore. North Carolina has only once, as far as I can tell, I think, recognized fighting words. And that was a white man calling a black man the N-word in an aggressive way. And our court said, this is a quintessential fighting word. Everyone sort of knows that's really bad. And that was likely to happen. provoke a violent response. But honestly, that opinion has got some age on it, some decades on it at this point, if I recall. And I'm not sure we would get to the same result today. I mean, there was a case out of the Fourth Circuit in the last couple years, U.S. v. Bartow, where it's kind of similar facts. This guy on a military base was just throwing around the N-word and being really disrespectful to employees in a, I think it was a shoe store. He was convicted of some disrupting the peace kinds of offenses. And same thing, you know, while crude and horrible and offensive, those words are still generally protected. And the government there couldn't show that anybody was sort of taking him seriously or was, you know, getting riled up in response to his language. The same here. Arguably, Mr. Barthel was entitled to greater protection because he was talking about political speech. He was criticizing the government, and political speech is where your First Amendment protections are at the greatest. The court does go through this forum discussion. You know, there's public forum, there's non-public forum, there's limited public forum. And something like a board of commissioners meeting is typically a limited public forum. You can put some restrictions on there as far as speech, but they've got to be reasonable and they're supposed to be viewpoint neutral, meaning they don't distinguish between the content of sort of just the same rules for everybody. And there's good law out of the Fourth Circuit, from the perspective of the board here, that says you can set policies that limit personal attacks on your officials. You don't have to put up with that in a limited public forum, but there does need to be a policy that's sort of set, a viewpoint neutral policy that sort of sets the bar equal for everybody and it doesn't matter the content of your message. You're strictly prescribing the way it's given in a certain thing. But the court here in Barthel doesn't mention that string of cases. They do note it was a limited public forum, but they said these just don't amount to crimes. This was protected speech. It doesn't rise to the level of fighting words. And you only went after him here because of the content of his speech, because it was offensive. Well, being offensive isn't enough here. they note that the only disruption occurred when law enforcement started the disruption. All he did was display this manner. He didn't say anything. He did not otherwise disrupt the proceedings at all. So that does not sufficient evidence of criminally disrupting the meeting. That just shows he was engaged in what the court called protected speech. And the court reminds people you're allowed to use reasonable force to resist an unlawful arrest. And here, Mr. Barthel was simply pulling away from the officers, telling them, you shouldn't arrest me. This is protected speech. And the Court of Appeal says he was right about that. And you shouldn't have been trying to arrest him for these crimes. And so he was entitled to reasonably arrest. You know, he didn't he didn't punch the officer in the face or pull out a deadly weapon or something. He just said, hey, keep your hands off me. I'm not doing anything illegal and pulled away a little bit. They said the defendant's resistance was mostly verbal and nonviolent, and his arrest violated the First Amendment, so his limited resistance to that arrest was justified. I am reading a lot of this from my colleague Bilal El-Rahal's case summary that was posted on the Criminal Law Blog on November 10th, so I want to give him due credit where it's due. But I intend to write a little bit about this case as well on the blog, a little bit more substantive of analysis. And I expect some of my colleagues here that work more closely with local government officials are also, I believe they're also considering writing this up, sort of more advice for the folks on the county commissioner or town council side of things. Folks, that is it for today. I hope you enjoy the ear candy for your holidays. It's great to be back in the studio so soon again with Paul. Big thanks to Paul Bonner. Big thanks to my brother, David Dixon, for composing our music. You can hear more of his stuff at David Dixon Music on Facebook or Instagram. Big thanks to Monica Yelberton, my associate director for programs and services, for all of her logistical support. Thanks most of all to all of you listeners. We couldn't do it without you. If you have thoughts, feedback, questions for me, please send me an email anytime. You can reach me at dixon at sog.unc.edu. Again, that's dixon at sog.unc.edu. I hope everybody has a safe and happy holiday season, and I hope to talk to you all again real soon. Thanks, everybody. Take care.
Episode 23: NC Criminal Debrief
This episode covers recent federal developments regarding hemp, as well as recent decisions from the North Carolina Court of Appeals on Good Samaritan immunity, offers of compromise, and fighting words.