Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/21/2021
E.g., 09/21/2021

The court per curiam affirmed the decision below, Johnston v. State, 224N.C. App. 282 (Dec. 18, 2012), which reversed the trial court’s ruling that G.S. 14-415.1 (proscribing the offense of felon in possession of a firearm) violated the plaintiff’s substantive due process rights under the U.S. and N.C. constitutions and remanded to the trial court for additional proceedings. The court of appeals also reversed the trial court’s ruling that the statute was facially invalid on procedural due process grounds, under both the U.S. and N.C. constitutions.

With one justice taking no part in consideration of the case, an equally divided court left undisturbed the following opinion below, which stands without precedential value:

Baysden v. North Carolina, 217 N.C. App. 20 (Nov. 15, 2011). Over a dissent, the court of appeals applied the analysis of Britt and Whitaker and held that the felon in possession of a firearm statute was unconstitutional as applied to the plaintiff. The plaintiff was convicted of two felony offenses, neither of which involved violent conduct, between three and four decades ago. Since that time he has been a law-abiding citizen. After his firearms rights were restored, the plaintiff used firearms in a safe and lawful manner. When he again became subject to the firearms prohibition because of a 2004 amendment, he took action to ensure that he did not unlawfully possess any firearms and has “assiduously and proactively” complied with the statute since that time. Additionally, the plaintiff was before the court not on a criminal charge for weapons possession but rather on his declaratory judgment action. The court of appeals concluded: “[W]e are unable to see any material distinction between the facts at issue in . . . Britt and the facts at issue here.” The court rejected the argument that the plaintiff’s claim should fail because 2010 amendments to the statute expressly exclude him from the class of individuals eligible to seek restoration of firearms rights; the court found this fact irrelevant to the Britt/Whitaker analysis. The court also rejected the notion that the determination as to whether the plaintiff’s prior convictions were nonviolent should be made with reference to statutory definitions of nonviolent felonies, concluding that such statutory definitions did not apply in its constitutional analysis. Finally, the court rejected the argument that the plaintiff’s challenge must fail because unlike the plaintiff in Britt, the plaintiff here had two prior felony convictions. The court refused to adopt a bright line rule, instead concluding that the relevant factor is the number, age, and severity of the offenses for which the litigant has been convicted; while the number of convictions is relevant, it is not dispositive.

Affirming State v. Whitaker, 201 N.C. App. 190 (Dec. 8, 2009), the court held that G.S. 14-415.1, the felon in possession statute, was not an impermissible ex post facto law or bill of attainder.

The court held that G.S. 14-415.1 (felon in possession), as applied to the plaintiff, was unconstitutional. In 1979, the plaintiff was convicted of possession of a controlled substance with intent to sell and deliver, a nonviolent crime that did not involve the use of a firearm. He completed his sentence in 1982 and in 1987, his civil rights were fully restored, including his right to possess a firearm. The then-existing felon in possession statute did not bar the plaintiff from possessing a firearm. In 2004, G.S. 14-415.1 was amended to extend the prohibition to all firearms by anyone convicted of a felony and to remove the exceptions for possession within the felon’s own home and place of business. Thereafter, the plaintiff spoke with his local sheriff about whether he could lawfully possess a firearm and divested himself of all firearms, including sporting rifles and shotguns that he used for game hunting on his land. Plaintiff, who had never been charged with another crime, filed a civil action against the State, alleging that G.S. 14-415.1 violated his constitutional rights. The North Carolina Supreme Court held that as applied to him, G.S. 14-415.1, which contains no exceptions, violated the plaintiff’s right to keep and bear arms protected by Article I, Section 30 of the North Carolina Constitution. Specifically, the court held that as applied, G.S. 14-451.1 was not a reasonable regulation. The court held: “Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety.” It concluded: “[I]t is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.” 

In a case where the defendant was convicted of felon in possession of a firearm, the court rejected his argument that the felony possession statute was unconstitutional as applied to him. The court began by rejecting the defendant’s federal constitutional claim, noting that because he is a convicted felon he cannot show that he is a law-abiding, responsible citizen under the test articulated in Hamilton v. Pallozzi, 848 F.3d 614, 623 (4th Cir. 2017). Turning to the defendant’s state constitutional claim, the court applied the Britt analysis. It noted that the defendant’s prior felony conviction was for possessing a sawed-off shotgun in 2005, a weapon of mass destruction. It noted that although his felony conviction occurred 11 years ago, the court has held the statute is constitutional as applied to a defendant where there was a span of 18 years between the prior conviction and the possession charge. With respect to the defendant’s history of law-abiding conduct, the court noted that the defendant has been convicted of driving while impaired, simple assault, assault on a female, driving without an operator’s license, being intoxicated and disruptive, felony possession of a weapon of mass destruction, and fishing without a license. With respect to the defendant’s history of lawful possession, the record established that the defendant had been unlawfully possessing at least one firearm since 2005. He thus could not establish compliance with the statute. Considering the Britt factors, the court concluded that the statute was not unconstitutional as applied to the defendant.

The court rejected the defendant’s contention that the possession of a firearm by a felon statute was unconstitutional as applied to him. Although rejecting the defendant’s challenge, the court agreed that the trial court erred when it found that the defendant’s 1995 Texas drug trafficking conviction “involve[d] a threat of violence.” The trial court also erred by concluding that the remoteness of the 1995 Texas conviction should be assessed from the point that the defendant was released from prison--13 years ago--instead of the date of the conviction-- 18 years ago. The court went on to find that because the defendant’s right to possess a firearm in North Carolina was never restored, he had no history of responsible, lawful firearm possession. And it found that the trial court did not err by concluding that the defendant failed to assiduously and proactively comply with the 2004 amendment to the firearm statute. The court rejected the defendant’s argument that this finding was erroneous because there was no reason to believe that the defendant was on notice of the 2004 amendment, noting that it has never held that a defendant’s ignorance of the statute’s requirement should weigh in the defendant’s favor when reviewing an as applied challenge. Finally, the court held that even though the trial court erred with respect to some of its analysis, the defendant’s as applied challenge failed as a matter of law, concluding:

Defendant had three prior felony convictions, one of which was for armed robbery and the other two occurred within the past two decades; there is no relevant time period in which he could have lawfully possessed a firearm in North Carolina; and, as a convicted felon, he did not take proactive steps to make sure he was complying with the laws of this state, specifically with the 2004 amendment to [the statute]. (footnote omitted).

The trial court erred by dismissing a charge of felon in possession of a firearm on the basis that the statute was unconstitutional as applied to the defendant under a Britt analysis. Here, the defendant had two felony convictions for selling a controlled substance and one for felony attempted assault with a deadly weapon. While the defendant was convicted of the drug offenses in 1989, he was more recently convicted of the attempted assault with a deadly weapon in 2003. Although there was no evidence to suggest that the defendant misused firearms, there also was no evidence that the defendant attempted to comply with the 2004 amendment to the felon in possession statute. The court noted that the defendant completed his sentence for the assault in 2005, after the 2004 amendment to the statute was enacted. Thus, he was on notice of the changes in the legislation, yet took no action to relinquish his hunting rifle on his own accord. 

The trial court erred by granting the defendant’s motion to dismiss an indictment charging felon in possession of a firearm on grounds that the statute was unconstitutional as applied to him. The defendant’s motion was unverified, trial court heard no evidence, and there were no clear stipulations to the facts. To prevail in a motion to dismiss on an as applied challenge to the statute, the defense must present evidence that would allow the trial court to make findings of fact regarding the type of felony convictions and whether they involved violence or threat of violence; the remoteness of the convictions; the felon's history of law abiding conduct since the crime; the felon's history of responsible, lawful firearm possession during a period when possession was not prohibited; and the felon's assiduous and proactive compliance with amendments to the statute.

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