Episode 6: NC Criminal Debrief

[00:00:10.948] [SPEAKER_00] Welcome to the North Carolina Criminal Debrief. This is a podcast devoted to covering criminal law news and developments in North Carolina and beyond. I'm your host, Bill Dixon, the Defender Educator and a faculty member here at the School of Government at UNC-Chapelville. I'm here in the studio with our resident tech wizard and producer, Paul Bonner. Thanks, Paul. It is very nearly Thanksgiving. By the time this comes out, I assume that holiday will have passed, but I hope all of our listeners had a safe and relaxing break. Starting with criminal law news as we do, this past weekend saw another mass shooting. A man entered a gay nightclub in Colorado Springs and opened fire with an AR-15, killing five and injuring at least 25 more. The suspect was apparently subdued by some club patrons during the middle of all this. and is in custody to be charged with murder and other offenses. His motive is not clear at this time as I understand that he's not cooperating with law enforcement in terms of giving a statement. So we'll see how that develops and whether or not additional charges might be brought like hate crime enhancements. According to WRAL, this is the sixth mass killing in the United States just this month. I was also kind of taken aback at the statistic. It is the 523rd such event in the country just since 2006. This was a 22-year-old suspect. Turning a little closer to home, the 15-year-old juvenile accused of killing five people in Raleigh on October 13th, he has apparently stabilized and has been released from the hospital and placed into a juvenile detention facility awaiting trial. As we've noted before, the Wake County DA's office has indicated they intend to try him as an adult, so we'll be keeping our eye on that story as well. In other criminal law news, the Christmas parade in Raleigh this weekend turned tragic. Apparently, a driver lost control of his truck during the parade and hit an 11-year-old girl, causing her death. Again, WRAL reports that this suspect has a history of equipment violations and has been charged with various traffic violations in regards to this offense, including misdemeanor death by motor vehicle. Our thoughts certainly go out to the family of the victim there. Staying in Wake County for one more minute, a capital case or a death penalty case, in other words, is underway in the matter of State v. Hill. Now, this case relates to a 2016 shooting. It's apparently all captured on video. and the state felt strongly enough about it that they have proceeded on the death penalty. But the ACLU is involved in the representation of Mr. Hill, and it has raised an interesting challenge to the process of jury selection in the case. In a capital case, the jury has to be death qualified, as in they must indicate a willingness to consider death as a possible sentence in the case. And if a potential juror says, you know, I'm just opposed to the death penalty, I'm not willing to impose it under any circumstances, that juror will not sit on the jury and will be excused for cause. Well, the ACLU is challenging that process, basically arguing that it produces racially disparate juries. They point to a study done showing that 10 out of 11 Wake County capital cases have had black jurors that were excused at higher rates than white jurors. And black women were excluded the most of any demographic. I believe it was a rate of 31% of their being excused versus 12% of just an average juror. So this argument goes, because the defendant has the right to a representative jury and this death qualification process unduly excludes black jurors, that it shouldn't be allowed at all. Now, presumably the death penalty is still an option in the case, but this motion would limit the ability of the state to question the jurors on this topic and presumably disallow these for-cause excusals and removals of potential jurors based on this, you know, whether or not they are willing to impose the death penalty. The arguments were made just last Friday and the trial court will be ruling on it soon. Certainly if that was granted, that would be a sort of seismic shift in how juries are selected in North Carolina death cases. So we'll be keeping an eye on that and encourage readers to, sorry, excuse me, listeners to keep an ear out for those. Zooming back out to national news, the Oath Keepers trial is underway. The members of this organization, certain leadership and high-ups in the Oath Keepers group are being tried for seditious conspiracy, basically that they have plotted to interfere with the lawful transition of power. This relates to the January 6th riot at the Capitol. Evidence has been presented, closing arguments have been made, and the matter is now with the jury. That is not a charge that you see very frequently, but it is very serious. I believe it carries up to a 20-year sentence. We've seen lots of convictions so far for people engaged in various aspects of the January 6th riot, but these are certainly among the most serious charges that have been brought so far. We'll be keeping an eye on this as well, and we'll report back once there's a verdict one way or the other. In related news, the Department of Justice this week announced that it was appointing an independent counsel or special counsel to continue the DOJ investigation against former President Trump relating to both the January 6 events at the Capitol and the confidential records allegedly found at Mar-a-Lago. This announcement was made within three days of the former president announcing his intention to seek our highest office again in 2024. There's commentary all over the board here. Some people are afraid that special counsel, this process is going to take too long. It's going to slow the pace of investigation and the case could languish as we get closer and closer to November 2024. Others think this is a great move that is needed to preserve the appearance of neutrality and independence by the department. So we'll see how that shakes out. Apparently this is a experienced special counsel and former prosecutor. He has formerly led the Public Integrity Unit at DOJ, sort of tasked with investigating public corruption, and most recently was prosecuting war crimes for The Hague. So an impressive resume. Case has been handed over to him, and we'll see how that goes. That's one more thing we'll be keeping an eye on. For a last, well, maybe second to the last news item, I wanted to flag this ProPublica story. This just came out today, I believe. And this is all about the use of 911 call analysis by law enforcement as evidence in death cases. So basically, there's this guy out there. He's teaching law enforcement this apparent method where... They listen to 911 calls of people reporting a death. And based on what they say, what they don't say, the order in which they speak, what they focus on during the call, the cadence of their speech, all of these can signify indicators of guilt according to this so-called method. Now, of course, statements made by a suspect are generally fair game. inconsistencies, obvious omissions, problems with a story, these typically do have probative value and may generally be used as evidence of guilt. But according to this theory, there is an expert methodology to divining the truth of a homicide situation based only on the interpretation of the 911 call by these metrics. And now remember, these are people calling in to report a homicide, and they may be dealing with considerable trauma and maybe in serious distress, you know, even as a witness or just merely as the person who found the body. According to this story, the FBI rejects this as a reliable method and cautions against its use, and no scientific study supports this as a reliable method. They recount in the story a child death case where this kind of evidence was used to convict the mother. The detective was allowed to testify to quote-unquote multiple indicators of guilt based only on her 911 call that was, according to the defendant, made when she discovered that her child was not breathing. It's a fine line, I think, in some ways. Officers are allowed to testify that the defendant was nervous, and this is a sign of suspicious behavior all the time. Even if courts have begun treating that nervousness factor with a little more suspicion these days, and certainly nervousness on its own is not enough of anything. But that's a common observation by law enforcement. I think a proper lay observation that, hey, the person was nervous. That's consistent with these other things that I'm seeing suspicious. They're likewise obviously allowed to say, hey, this is an indicator of impairment. Or in some cases, I think you can say this is an indicator of deceptive behavior. that all generally tends to be fair game again, but I think you gotta be, defenders have to be wary of this. I think you might wanna consider if you're handling homicides, you might wanna consider including a discovery request in your discovery motion On whether this method was used and how it may have shaped the investigation, what if any training the officers have had on it, but maybe more to the point, if this kind of testimony is possibly going to be offered in a homicide case, I think it would be entirely appropriate to challenge it by way of a motion in limine, to either prohibit it altogether or to limit this kind of opinion evidence as unreliable and as improper vouching. You know, it's one thing to say, hey, in my experience as a trained officer of investigating a ton of homicides, this was a really bizarre thing to say, or, you know, this was inconsistent with the evidence on the scene, or these two statements were inconsistent with each other. But I think it's a whole different thing to say based on the cadence of speech and how, in what order the homicide facts were reported on 911 call, again, by a person ostensibly in a lot of distress. that that's an intentional sign of deception, as an expert opinion, well, that seems to me a bit too far. Credibility is for the jury to determine. I think this is arguably improper expert evidence under Rule 702 and improper vouching by an expert. So Judges 2, you're reminded that y'all are gatekeepers under Rule 702 and it's your duty to ensure that any kind of expert testimony was the product of reliable methods and that those methods were reliably applied. or before defenders you let this kind of opinion evidence go unchallenged, I would just say it doesn't look very well supported by the science to me. I think if you're handling death cases, particularly child death cases, it's an important story to check it out. ProPublica has that piece. In a final bit of news, I just wanted to flag my colleague Jeff Welty's blog post on a Bruin update. Folks, we flagged on this case. We flagged this case before on the podcast, New York State Rifle and Pistol Association versus Bruin. That case didn't have a huge impact in North Carolina, at least in the short term, but it did offer sort of a different structure to analyze Second Amendment claims. Under Bruin, limits on gun rights are really only going to pass constitutional muster if the regulation is consistent with historical firearm regulation. So you have to go back and look at the history of regulation of firearms that existed at the time of the founding. For better or worse, whatever you think of that, we're starting to see it applied. And again, my colleague, Jeff Welty, did a really good blog post summing up some of those decisions, and I wanted to flag it down for people. We've had a case in the Western District of Texas, and these are all district court decisions by federal district courts, not gotten to a circuit court of appeals yet, but we'll see as we're keeping an eye on them. And here's what we have so far. 922 , the general federal firearm prohibition statute, among other things, prohibits a person who's under a domestic violence protective order or a DVPO from possessing guns. Well, a federal court applying this new framework found that we didn't even prosecute domestic violence back in the day. So this does not rooted in historic and historical regulation of firearms. So under Bruin, that fails. So they struck down the person with under a DVPO being in possession of a firearm under as a Second Amendment violation. We saw a similar result out of the Southern District of West Virginia for the ban on possessing weapons with destroyed serial numbers. And Western District of Texas They struck down the federal prohibition that says if you're under felony indictment, you cannot possess a firearm, according to federal law, during the pendency of that indictment. That's been struck down. Nothing back when the Second Amendment was passed prohibited this kind of restriction. And so... No dice. And you have partial enjoyment of a ghost gun ban in Delaware. In New York, there was a New York law banning possession of guns in certain places like subway trains, music venues, medical facilities, Times Square. Part of these limitations were upheld as far as schools and polling places and churches, but other places were enjoined and said you can't keep people from possessing firearms in all of these places as a matter of the Second Amendment. There's other stuff in there as well. I encourage listeners to check out that blog post. It is full of good stuff. As Mr. Welty, Professor Welty points out in his piece, the next biggie is really the felon disqualification. I mean, arguably the felony disqualification that is once you've been convicted of a felony, you lose your right to possess a firearm. I think many people would argue that's both too broad and too narrow, but we'll see how that if and when that is challenged. Certainly Heller, the original case sort of finding this individual Second Amendment right does have language in it basically reaffirming the traditional ban on felons in possession. But under this new analytical framework offered by the Supreme Court in Bruin, maybe there's an argument there that that doesn't fly anymore. All right, that's it for news. I wanted to next hit some of these Supreme Court decisions from November 4th. Our state Supreme Court just released another batch and we're gonna talk about it. So State v. Harvin provides a good reminder to trial judges about forfeiture of counsel. This was a new Hanover County case I believe the defendant was quite young and he's charged with first degree murder and robbery. And he burns through quite a few attorneys. And in 2016, he's appointed counsel. That attorney has to withdraw due to reasons not related to the defendant in any way. So attorney two gets put in, in 2017 he has to withdraw again for nothing having to do with the defendant. So his own reasons. A third attorney is appointed and he does run into a conflict with the defendant and is basically asked to withdraw. He moves to withdraw and the court permits him to withdraw and appoints a fourth attorney. The defendant again gets into conflict with this fourth attorney And at that point, that attorney is allowed to withdraw again and the defendant is gonna represent himself for a little bit. But as we get to the trial date or getting close to the trial date, the defendant is expressing some confusion about whether he really wants an attorney or whether he can represent himself and how much time he's gonna be able to prepare and will he be able to have access to the resources he needs to prepare for trial. There's this exchange with the trial court about, you know, whether he understands what he's doing, whether he wants counsel or not. Standby counsel is appointed and there's some discussion, you know, are you going to, are you asking standby counsel to step in? Are you not? Well, the state in response to all this just argues, hey, we think this is just delay. This is a waste of time. He's just basically spinning his wheels and we think he's forfeited his right to counsel. And after hearing that argument, the trial court concludes, yep, he's forfeited his right to counsel. So he goes forward representing himself on this murder case and no surprise, is convicted on all counts. The Court of Appeals gave this guy a new trial, finding a right to counsel violation and the Supreme Court just affirmed. They said the defendant did not engage in behavior justifying forfeiture of counsel. Typically, we need aggressive, profane, or threatening behavior or conduct that represents a serious obstruction. Now, this guy did go through four attorneys and then chose to represent himself and then kind of changed his mind about that. But two of those attorneys withdrew for no reasons, for reasons just not related to the defendant's case or conduct. The court points out the other two withdrew due to a conflict with the defendant, but with the court's leave. You know, the trial court had to grant that motion of withdrawal. They're not necessarily required to. They said, looking at the defendant's conduct here, we can't find any conduct rising to the level required for forfeiture. His behavior indicated some confusion. His behavior indicated a low level of sophistication and no surprise given his young age. But his conduct did not rise to the level of justifying forfeiture. Therefore, new trial, send it back, give him presumably a new lawyer. Notably, Justices Berger, Chief Justice Newby, and Justice Berenger all dissented and would have upheld the trial court's decision that he indeed did forfeit his right to counsel. So that's State v. Harvin from November 4th. sticking with the November 4th batch. Folks may remember the case involving the former person in Caswell County DA, Wallace Bradshaw. This is the case where he hired his other DA buddy from another district. He hired that DA's wife to come do work in his office, but he never really gave her work. And she eventually is like doing nursing school full time while collecting a state paycheck for, you know, as a DA assistant, but not doing the work. And this eventually comes to the SBI's attention when they interview Mr. Bradshaw, the elected DA. He said, well, you know, she works on special special cases and conflicts. And didn't say she is doing that right now, just said that's sort of what she's been doing. He's convicted, among other things, of obstruction of justice, felony obstruction, based on that comment. But at the Court of Appeals, they reverse and say, yeah, look, that was a false statement that she was working on special projects and conflict cases, but it didn't actually obstruct the investigation. And for obstruction, you need a false statement that causes obstruction or delay. And they said that was not met here, so vacate that conviction. Well, the state didn't like that decision and they sought review at the Supreme Court and the Supreme Court reversed. They said this was absolutely sufficient evidence of obstruction of justice. The SBI agent didn't necessarily clarify if he meant currently or what, but the Supreme Court points to the standard here, right? If we're looking at the question of sufficiency of the evidence. It's really, you know, is there any evidence? Is there any evidence that a reasonable jury could look at and say, yeah, we think that's been met? They said that was met here. So Mr. Bradshaw's conviction for obstruction of justice based on this statement is reinstated. Here again, we had a couple of dissenters, Justice Earls and Justice Morgan would have dismissed the conviction and held that it was insufficient evidence. There's a little bit of discussion of Dittenhofer in this case as well. That's another Supreme Court case from a couple years back on felony obstruction. In Dittenhofer, it involved a mother who was sort of pressuring her child to recant some sexual assault allegations made against a man, perhaps one of her family members. and interfering with the ability of DSS and law enforcement to interrogate that child or to question the child on the alleged offenses. And if I recall, the same sort of thing happened in Dittenhofer. The Court of Appeals said some of that stuff, some of those statements that the mother was convicted of, as far as her obstructive acts, were not sufficient. But when it got to the Supreme Court, they reversed and said, no, this was sufficient evidence. A jury could look at this and decide that was enough. So if you're dealing with an obstruction case, Bradshaw is a good one to be aware of. And I think it's consistent with the pattern we see set in Dittenhofer from a year or two back. Okay, kind of the biggie of this batch, at least in my mind, is a case called Diaz-Tomas. There was a companion case as well, but Diaz-Tomas is where the Supreme Court spoke on this issue. This relates to dismissals with leave and whether the state can be required to reinstate charges. And the answer turns out is no. That's what we get from Diaz-Tomas. So here, Mr. Diaz-Tomas was charged, I believe, with impaired driving. He gets a court date set. He fails to appear. He gets picked back up, gets a new court date set, fails to appear. The case is then dismissed with leave. That's a VL, a voluntary dismissal with leave. There's a 15 statute that allows the state to take dismissals with leave, and it's basically for this kind of situation. Hey, we can't find the defendant, but we're not giving up on this case. We think we've got a case to be made if and when we pick the guy up. Eventually, he is picked up on some new stuff, and when he is in court, he says, I really wanna take care of this DWI. Can you put it back on the calendar? Wake County policy is that you are not entitled to have those cases reinstated unless you agree to plead guilty and waive all rights to appeal. So that's it, and if not, then you can just hang out there with your unresolved case forever. Of course, having a VL case, a dismissed with leave case, means not only is there sort of typically there might be conditions of release in place or, you know, the person sort of has this outstanding criminal process hanging over their head, but more, perhaps more significantly, at least on a practical level, your license is indefinitely suspended. So you can really never obtain a driver's license until you resolve a dismissed with leave case. There's a statute, 932, that says, you know, they can do this, they can put it on. And under that same statute, it says, you know, if it's a waivable offense, waivable under GS 7A 148, that is, you know, you sign a waiver of appearance, plead guilty, you can do a waiver if it's a waivable offense and just pay the cost, pay the fine, enter your guilty plea, and boom, the case has now been resolved. The VL will be removed. One, DWI isn't waivable. And two, either way, we're really talking about a guilty plea, right? I mean, either you go with the DA's policy and plead guilty as charged, or if in the event it's waivable, you can go about it this way, which is also a guilty plea. But that was sort of the question here was if I can't plead guilty by waiver, which I can't, I think the state should be required to put the case back on. And the defendant's not just pulling this out of the blue. There's a statute in Chapter 20. So this is only for your motor vehicle offenses. But that's what we were dealing with here was a DWI. GS 2024.1 says the defendant must be afforded an opportunity for trial or hearing within a reasonable time of his appearance. And if the defendant makes a motion, the court has to order a hearing or trial be heard within a reasonable time. So the defendant points to that statute and says, hey, I'm here now. I'm ready to go. I want my opportunity for a trial now. When the DA would not put the case back on, he filed a motion in district court asking the judge to basically order the DA to put the case back on. and the trial court declined to do so. So the defendant sought certiorari review under Rule 19 of the General Rules of Practice and filed a petition for cert in the Superior Court, basically saying, hey, you know, the district court got it wrong. We need our case put back on. We think this Chapter 20 statute authorizes the court to order the case be recalendared, please overrule the district court. Well, the Superior Court declined to do that as well. So up to the Court of Appeals it went. The Court of Appeals was having none of it, basically said, nope, we don't think that they have to do that, and you're not entitled to any relief here, Mr. Diaz-Tomas. So this goes all the way up to the Supreme Court and they affirm the Court of Appeals and reject this argument by the defendant. They first point out DAs are constitutional elected officers. The decision to reinstate charges is completely within their discretionary power. And so not only does the DA have the unfettered discretion to decide whether or not to reinstate charges once they've been dismissed with leave, they go on to say the trial court lacks all authority, any authority, to make the DA make that choice. That would be interfering with the DA's performance of constitutional and statutory duties. Shay Denning, my colleague here at the School of Government, did an excellent blog post on this. I encourage people to check it out. There are some constitutional issues here that were being argued that, you know, I'm not sure the court gave full shrift to. It would be ironic if another sort of speedy trial case were to go back before the U.S. Supreme Court, but I think the appellate attorneys here are considering the prospect of federal further review in the U.S. Supreme Court. Back in 1967, we had a case called Klopfer versus North Carolina. And that challenged the North Carolina practice at the time of doing what's called a no-leap cross with leave. So they would basically, it's similar to dismissal with leave. They'd sort of indefinitely postpone the charges. They could be brought back when the... when the prosecutor feels like it, but the defendant didn't have any right to insist that something be heard. In Klopfer, the US Supreme Court struck that down and said, you know, that's a problem. That's a problem under the Speedy Trial Clause, and you can't just sort of leave it hanging out there forever. We also had a state Supreme Court case, Simeon V. Hardin, our regional defender at IDS, Tucker Charnes, I believe, was the trial lawyer in Simeon, if I recall. And Simeon speaks to this due process protection against calendaring uh, authority abuse where the DA and Simeon, the allegation was, you know, the DA is playing tricks with the calendar, keeping people waiting for trial too long, keeping them in custody too long and using that as a tool to coerce guilty pleas. And so the defendants here basically both said, you know, whether it's speedy trial or due process or some combination of both, you know, under Klopfer, under Simeon, this sure smells bad. This looks a lot like those situations. The Supreme Court said, no, we disagree. You know, in both of those other cases, the defendants were there and nobody failed to appear for three years. He was given court dates on the front end repeatedly. He's the one defendant. You kept running. You kept failing to show. You basically have waived any complaint about these issues. As Shay points out in her blog post, that is interesting, that statute in chapter 20 that says you should be afforded an opportunity for trial of hearing after failing to appear. I don't know what that means after Diaz-Tomas, because it certainly doesn't mean that the defendant can insist that his case be calendared. Diaz-Tomas squarely holds that he has no such right. Furthermore, As Shay notes, it seems like he's left with one option here, which is to plead guilty. That raises to my mind a separate set of concerns, which is how is that a voluntary guilty plea? Guilty pleas have to be knowingly, voluntarily, and intelligently entered and it's a canon of basic constitutional criminal procedure that a coerced guilty plea is not valid. Now, this is not explicitly considered by the court, but this is strange to me, because Shea points out, what if he was being detained under a court order for failing to appear? I don't think they could leave him in jail forever and just refuse to put his case back on the calendar. He would have presumably some due process right to have his case heard and resolved at some point. So it seemed to me, and this was a unanimous opinion, which was kind of surprising to me. We see so many divided opinions out of the state Supreme Court recently. But the court here unanimously said this situation is distinct from those in Klopfer and Simeon. And basically, you know, I think without coming out and exactly saying it, it's like you waived any constitutional or statutory objections by repeatedly failing to appear and being in the wind for so long. And certainly, I mean, that's a tough question. Can I disappear for 10 years and come back and then say, hey, I want my trial now? That's certainly not fair to the state. In many cases, the state's not going to be able to prove the case after a while. But the flip side of it is that the defendant has no right, no matter the circumstance, and The blog post talks about this. Under the court's interpretation, it seems like that's the answer, but this was not a particularly sympathetic defendant, and perhaps the result is different. I think, one, if you're in this situation, I think it's still probably worth a challenge and some kind of argument that this does indeed violate due process and speedy trial rights, but for right now, the law in the state is against any defense argument like that. Again, I think this case could be one. Supreme Court has reviewed similar procedures like this before the U.S. Supreme Court against North Carolina practices. So we may see further review sought there. And if so, you can be sure that we will be covering it. I think they're looking for Supreme Court representation right now. All right, just to close, I wanted to flag State v. Teague. We covered State v. Booth last episode and talked about that cannabis identification evidence and challenging marijuana identification by sight and sound. I talked a little bit about the Teague decision there, but basically this was a case involving charges of marijuana and possession with intent to sell and deliver and possession with intent to sell and deliver THC. I'm actually not going to cover the whole case right now, but I just wanted to remind you. So they put out this decision in Teague. It was very messy at first. There was basically three opinions, two of which were concurring. It was very hard to piece together exactly what was going on in the case. And there's interesting Fourth Amendment stuff. There's interesting sufficiency of the evidence, pleading issues, drug identification evidence. I mean, you hit the... the gamut of issues with this Teague case. The attorney sought en banc review, meaning he's asking the whole entire court of appeals to come sit and hear the case and overrule the initial panel. When that motion was filed, the court of appeals withdrew their original opinion and that mooted the motion for en banc review. I believe it was November 1st, the Court of Appeals, that original panel of the Court of Appeals, re-released the Teague decision, and they cleaned up a lot of the Fourth Amendment stuff. They got rid of the two concurrences, so it's just now one unanimous opinion, and I think their Fourth Amendment, the change to the Fourth Amendment stuff, it's better, it's a more solid analysis than what there was in the first place. But the real interesting stuff and the Fourth Amendment stuff is fascinating. I mean, it's a case of first impression regarding postal interdiction and Fourth Amendment rights in that context. And I'll have more to say about that soon. But the rest of it is also really interesting. And it's one of the more difficult opinions I've struggled with to really interpret. I mean, when this came out originally and you know, effectively, most of this hasn't really changed between opinion one and opinion two. I emailed several of my colleagues at the School of Government. I was like, I can't, is this dicta or holding? Like, can you tell me what you think is the binding part of this case? Because the court disposes of these Fourth Amendment arguments in Teague, the second version, by basically saying, this isn't a search, this isn't a seizure. And then says, well, now we want to talk about the impact of the industrial hemp act. and they talk about some federal district court cases where federal courts have upheld probable cause searches based on cider odor of marijuana and say, you know, that really influences how we're gonna look at these other issues in Teague's case, which again, were a pleading argument, a sufficiency argument, and an evidence argument. Arguably, you know, probable cause cases don't really speak to those other issues. But, you know, there's this sweeping pronouncement in Teague that the industrial hemp act basically changed nothing about the state's burden in prosecutions. That language is in the case and you can believe the state is going to be running with language from T in opposing motions to suppress and other arguments relating to cannabis issues. But I would just say for anybody litigating these cannabis issues, whether you're on the state side or the defense side or whether you're the trial judge, you know, calling the balls and strikes here, You've got to read Teague carefully because there is a lot in there that I think is more advisory than technically holding. Again, so I will come back to Teague at probably the next episode and really give it a deeper dive. But, you know, one part of the analysis I did want to go ahead and flag in the sufficiency of evidence part. The defendant challenges the sufficiency of evidence supporting his claim. conviction for possession with an intent to sell and deliver, quote unquote, THC. It was basically marijuana extract or cannabis extract with big sheets of wax substance, sort of concentrated hashish. At trial, the detectives were allowed to just offer a lay opinion that that's THC. The court basically says, well, this wasn't hemp because it wasn't plant matter. And even if it was hemp, even if this does count as hemp, even though it's not in plant matter form, the defendant didn't show that he's a licensed grower or that the hemp was produced in accordance with the rules governing the Hemp Commission's rules. So therefore there's sufficient evidence. That's a funny bit of analysis. You know, we talked about last time in discussing the Booth case, how under Osborne, a Supreme Court decision, sort of on admissibility versus sufficiency, if there's any evidence before the jury, even if it's unreliable, incompetent evidence, if it comes in, that's enough for sufficient evidence. I think that the court here has that part right for Mr. Teague's case. There was some evidence before the court identifying this stuff as THC. Therefore, the defendant loses and they kind of acknowledge that in a footnote. But, you know, they sort of go two steps further than they have to by then getting into this discussion of how this THC couldn't possibly qualify as hemp because it's not plant matter and it's not produced by a licensed grower. So we'll close with these two points. One, it can't be that anything not in plant form is considered not hemp. I don't think the old law said that. Certainly the current law does not say that. And under that interpretation, CBD would be considered illegal THC. Right. Because it's CBD oil is no longer in plant form. It's in some kind of liquid extract or, you know, resinous form. And it's going to contain some THC. You know, it's hard for me to wrap my brain around whether the stuff is plant matter or not is the definitive question. Secondly, to me, it feels like the court is really grafting on this licensed grower requirement. That was always in the definition of hemp, the old definition of hemp. Hemp is part of the cannabis plant, no more than 0.3% Delta 9 THC and grown by a licensed grower. But that's all the guidance we ever had under the Industrial Hemp Act. There was no law that said, and by the way, to legally possess this, you must show X, Y, and Z. And certainly that's not consistent with the reality on the ground, which is you can get hemp products in plant form and non-plant form, including extract form, much like the alleged THC at issue NT, all over the state. So where does that leave us? We've got a new motion for en banc review that's been filed under the rule of appellate procedure, allowing motions for en banc review. The court, I believe, has to act within 30 days or so, and they have to list their vote count. If Mr. Teague's appellate attorney is lucky, he might be the first one to get an en banc hearing at the Court of Appeals. One of my colleagues pointed out, though, they've never done so, and it might be as simple as they don't really have anywhere to sit, all 15 of them. So, we'll see. I know the attorney has filed a motion for en banc review for the second time now, asking for the full Court of Appeals to overturn the panel decision, in part based on the argument I just went over, that This analysis in the sufficiency section about what is or isn't THC would really cause vast confusion for the hemp industry and would effectively criminalize products that have largely been considered legal and are widely available in the state for the past several years. And of course, it's a whole new scheme under our new law anyways. But even this old stuff under the Industrial Hemp Act, I think, is significant. And so we'll see what the Court of Appeals does with that. In any event, we'll know how they voted, at least what the vote count was. I imagine the odds are honestly pretty low for en banc review here. Just because they've never done it, I'm not hopeful that this will be the one that gets them there, but I know that any vote on that would likely make it into an additional petition for discretionary review at the Supreme Court. I imagine further review will be sought at that stage unless the defendants were to prevail and both obtain en banc review and win at the Court of Appeals. So we'll be keeping an eye on that. Again, this is not quite the cannabis episode I was hoping to do soon, but I'll probably do one of those in December and we'll really dive deep into tea. For now, that's it for today's episode. Thank all of you who are listening and providing feedback to me. You can email me with any thoughts, questions, concerns, topic ideas. The email is dixon at sog.unc.edu. Thanks to my brother David Dixon for the theme music composition. He can be found at David Dixon Music on Facebook and Instagram. I know he just released a new song, so shout out to my brother. Check out his music if you like. Thanks too to Monica Yelberton, Associate Director of Programs and Trainings here for the Public Defense Education team. Thanks as always to my wizard in the studio, Paul Bonner. And thanks most of all to all of you listeners. It's been really great hearing from y'all. I'd love to hear more. Please like and subscribe the podcast and we'll talk to you again soon. Thanks everybody.