Evaluation of the Amber Guyger case under NC Law

In the pending Texas case, Amber Guyger entered the darkened apartment of Botham Jean, shot and killed him. She claimed that she erroneously believed the apartment to be hers and believed that Mr. Jean was a burglar. As an off-duty police officer, her firearm was easily accessible. Since the apartment was dark, she could only perceive Mr. Jean as a silhouette. After shouting commands and without turning on the lights, she fired her weapon and killed Mr. Jean. Only after shooting him, did she turn on lights thereby ascertaining that she was not in her apartment after all. The authorities filed the lesser crime of manslaughter. What would have happened in North Carolina?
ISSUE #1: Is this murder or manslaughter? The undisputed facts show only that the lawful occupant, Mr. Jean was shot by Ms. Guyger. The only way a manslaughter charge could have been filed in the Texas case is if the affirmative defense of Imperfect Self-Defense was accepted whole-heartedly by the Texas authorities. Imperfect Self-Defense occurs when the defendant believed it is necessary to kill her adversary in order to save herself from death or great bodily harm. In addition, defendant’s belief must be reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. (State v. Ross (1994) 338 N.C. 280, 283, 449 S.E.2d 556, 559–60.)
Whether Ms. Guyger’s belief was reasonable is quite debatable and should be put before the trier of fact. If Ms. Guyger would have turned on the lights, she would have realized immediately that she was the interloper. Is it reasonable for her to shoot into the dark apartment when her safety had not been threatened? At trial, it would be Ms. Guyger’s obligation to prove the affirmative defense and the jury would decide whether she has sustained that burden or not. The self-defense case is not so ironclad that it negates the probable cause to believe that a second-degree murder was committed. The proper charge under North Carolina law would be second-degree murder and not the lesser charge of manslaughter.
ISSUE #2: Does Ms. Guyger have a good affirmative defense? Under North Carolina law, would Guyger’s mistake of fact constitute a complete or partial affirmative defense? Short answer: no. In North Carolina, she would properly face a second-degree murder charge and should be convicted of the same. Amber Guyger was the aggressor, did not have a lawful right to be in Mr. Jean’s apartment and did not act reasonably.
Under North Carolina law, a person can use deadly force if the person reasonably believes that the conduct is necessary to defend herself against the other’s imminent use of unlawful force or if that person is in their own home. (NCGS § 14-51.2, NCGS § 14-51.3)
According to her version, Mr. Jean’s silent presence would not be sufficient to cause a reasonable person to believe that any force was imminent and despite her confusion, Ms. Guyger was not in her home and did not have a lawful right to be there; only Mr. Jean did. Only Mr. Jean had the right to defend his home against the true intruder, Ms. Guyger, and any force he could have used would have been lawful. (NCGS § 14-51.2.) Under North Carolina law, only Mr. Jean was a lawful resident of the apartment and could use deadly force.

Footnotes:
1. As an off-duty police officer acting in the capacity of a private person, her actions should be judged as any other civilian.
2. The lawful occupant of a home is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself if both of the following apply: (1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home and (2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (c) The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances: (1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the home. (NCGS§ 14-51.2. (b)(c))

Homicide and Manslaughter Charges Now Filed for Hazing Deaths

Injuries and death caused by hazing are no longer excused or treated with a slap on the wrist. Prosecutors are bypassing misdemeanor hazing charges for the much more serious murder and manslaughter charges when death results from a hazing ritual.
“Go back a generation or two, and hazing was accepted conduct, part of the fraternity experience, part of the football experience,” said David LaBahn, president of the Association of Prosecuting Attorneys. Now it’s no longer ‘boys will be boys’ and ‘why is the prosecutor getting involved in this?’ I think there is much more acceptance out there that this is unlawful behavior.”
Three cases: LSU, Penn State and Baruch College illustrate this new reality:
At LSU: On September 13, 2017, at the Phi Delta Theta house, an 18-year-old pledge died of acute ethanol intoxication with aspiration after playing a drinking game. His blood alcohol content was .496 percent, more than six times the legal limit. He and other pledges had received text messages ordering them to report for “Bible study at the chapter house. “Bible study,” was question-and-answer game during which pledges were forced to drink “a pull” from a bottle of alcohol if they answered questions incorrectly. The 19-year-old fraternity member who was in charge of the hazing event and who aggressively insisted that the pledge drink was charged with negligent homicide and misdemeanor hazing. Nine other students are currently facing hazing misdemeanors and expulsion.
At Penn State: On February 2, 2017 at the Beta Theta Pi house, pledges were forced to line up for a “gauntlet” of drinking stations. First, they passed a vodka bottle down the line. Each pledge was ordered to drink before moving to the next station. The pledges were then ordered to “shotgun” a beer, and made to drink from a wine bag. Finally, the were obligated to finish with beer pong. In a group message sent shortly before midnight, one of the fraternity members texted that an 18-year-old pledge had fallen 15 feet down a flight of stairs and would need help.” Video from the fraternity showed the pledge stumbling and hitting his head on a railing, on the stone floor and on a furniture. A few times, a fraternity brother walked into the lobby, saw the pledge lying on the couch and failed to render aid. Instead he was “back-packed.” A backpack stuffed with textbooks was placed on his back to weigh him down so that he would not roll over and choke on his vomit. While he drifted in and out of consciousness, fraternity brothers splashed water on his face in an effort to revive him. Twelve hours after the gauntlet game commenced, 911 was alerted but by then he had died. Eighteen Penn State students were charged: eight with involuntary manslaughter and ten with hazing misdemeanors and furnishing alcohol to minors.
At Baruch College: On December 9, 2013, a Pi Delta Psi pledge participated in a ritual called the “Glass Ceiling.” He was blindfolded and made to wear a backpack weighted with sand while crossing a frozen field as members of the fraternity tackled him. During at least one tackle, he was lifted up and dropped on the ground in a move known as “spearing.” He complained his head hurt but continued participating and was eventually knocked unconscious. Fraternity members carried him inside and contacted a national fraternity official who told them to hide fraternity items. Some members left the house, while others changed his clothes and conducted internet searches to diagnose his symptoms. When the pledge experienced trouble breathing, he was driven to the hospital where he died of severe head trauma. Initially, 37 people were charged in connection with his death and faced assault and hindering apprehension charges. Five fraternity members were charged with third-degree murder which did not require a specific intent to kill. Eventually, four of the men who had been charged with murder pleaded guilty to reduced charges of voluntary manslaughter and hindering apprehension.

REVENGE PORN LAW- TAKE 2

In an effort to keep pace with the posting of sexual or private images, videos and live stream on social media, the North Carolina Revenge Porn statute, G.S. 14‑190.5A, has been significantly modified. The Revenge Porn law is the mechanism by which public disclosure of intimate images is criminally punished. Previously the law required that a “personal relationship” exist between the defendant and the subject of the image but no longer. All that is required is the publication of intimate content intended for humiliation, coercion, intimidation or financial loss. Violation of the statute is a felony for adults and repeat offender minors and a misdemeanor for those under 18. The crime is complete if the defendant:
(1) posts an image, video or live stream,
(2) of “naked human parts” (genitals, pubic area, anus, woman’s nipple) or sexual, excretory or lewd exhibitionistic activity,
(3) of a person who is identifiable either in the image or by accompanying information,
(4) without that person’s consent or with an expectation that the image would remain private and
(5) disclosure is intended to harass, intimidate, embarrass or cause financial
loss to the depicted person.
Under this modification, the defendant does not even have to know the victim and the victim doesn’t have to be aware of the taking of the image(s). Photographing a person with a telephoto lens when they were unclothed or engaging in a sexual act would qualify if performed with the required intent.
I can foresee First Amendment challenges to some of the wording used: “normal or perverted” and “clad in revealing or bizarre costume.” Additionally, the legislature expressly mentioned that the scenario wherein an identifiable person’s head was superimposed onto another body was not within the scope of this law but would be “studied” and may be the the subject of the next modification.

RESTORATION OF GUN RIGHTS AFTER INVOLUNTARY COMMITMENT-PART 2

 
Under state and federal gun laws, a person who has been involuntarily committed to a mental health facility may not possess a firearm. (NCGS§14-404(c)(4), 18 U.S.C. § 922(d)(4)) However, this prohibition may be lifted by complying with the restoration protocol articulated in NCGS§ 14-409.42.
Step 1: File and serve a petition in the same district court which adjudicated the involuntary commitment once the commitment has ended and once the mental condition which led to the commitment has been treated. The petitioner must be able to prove that he/she will not be likely to act in a manner dangerous to public safety and that the restoration of the firearm rights would not be contrary to the public interest. Petitioner must sign a release of information so the prosecutor can obtain mental health records for the hearing.
Step 2: At the hearing, the district attorney can present evidence from petitioner’s mental health records, juvenile records, and criminal history. The judge will decide the case on the following items of evidence: the petitioner’s mental health and criminal history records, the petitioner’s reputation or other character evidence, and any changes in the petitioner’s condition or circumstances since the original determination or any findings relevant to the relief sought.
Step 3: The judge will decide if the petitioner has proven that he/she is not likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. If the judge rules in petitioner’s favor, the clerk of court will send the order to the National Instant Criminal Background Check System (NICS) and the prohibition against firearm possession is lifted.
Step 4: If the judge rules against petitioner, the case can be appealed to the Superior Court for a new hearing. If the Superior Court denies the petition, then the applicant must wait a minimum of one year before reapplying.

WHY DO AFFLUENT AND ACADEMICALLY SUCCESSFUL ADOLESCENT GIRLS STEAL?

ISSUE: Why would a teen aged girl on the college track and with the financial ability to buy a desired item steal?

A significant percentage of the theft cases I handle are committed by teens who consciously choose to jeopardize their academic and professional futures by stealing despite the fact that they have money. When caught, the girl who intentionally committed the theft oftentimes with premeditation and planning cannot seem to comprehend or explain why she stole. This Blog attempts to elucidate reasons for this seemingly irrational behavior. Each reason will be discussed in separate Blog chapters.

Part 1: The reasons for teen self-sabotage are:
1) Biological (brain development, hormonal and emotional) infirmities and liabilities inherent to all teens
2) Self-imposed pressure to succeed
3) Parental pressure to succeed
4) Pressure to meet society’s standards for physical beauty
5) Pressure to achieve in non-traditional fields of study and sport while still adhering to feminine norms.
6) The desire to engage in risk taking activities as an emotional coping mechanism.

Why Do People Steal When They Have Money?

Theft from a retail store or from one’s employer is a common charge in criminal court. Sometimes, my client is aware of the motivation for the theft but often the client seems bewildered by his/her own actions. Why do people who have the money to buy a desired object try to steal it anyway? This blog will focus on adults who commit theft and a separate blog will address teen-age theft.

Many people steal because they feel that life has shorted them in some respect and by stealing, they are taking steps to correct this injustice. It is irrelevant that the store where the property was stolen had nothing to do with the deprivation; it is the fact that something of value has been obtained without payment which triggers a feeling of vindication.

Emotional deprivation occurs when feelings of rejection or unmet personal expectations motivate a desire to remedy one’s misfortune. By taking a desired item, he/she is trying to balance life’s injustices with a windfall. “The question they’re asking is, “How can I make up for what I feel has been taken from me?” Stealing offers—at least momentarily—relief, peace, and completion. For a few minutes, they’ve made life fair again.” (Shulman, Something for Nothing: Shoplifting Addiction and Recovery.)

Financial deprivation occurs when the person has less money, assets or material goods currently as compared with a time previously. It could be a paper loss such as a fall in the stock market or it could be a diminution in their standard of living. Alternatively, the person feels that he/she has less money, assets or material goods than friends, peers or celebrities.
Entitlement occurs when a person feels that they deserve more than what they are receiving in the sale transaction. Although similar to deprivation, entitlement occurs in a predominantly affluent person who believes that moral precepts do not apply to him/her.

“It becomes a cat-and-mouse game: What are you going to see me take today? They’d pay for one of the things they were still holding but drop something extra in their shopping bag, like their own version of a free gift,” said a former Sephora employee who detained a woman for hiding cosmetics and skin products behind her baby’s head in an $800 stroller. An Anthropologie employee commented that the thieves were their best paying customers; some upper middle class women buy very expensive clothing and then “accessorize” for free. “We were taught that our prime shoplifters were women and girls who were regular shoppers” said one ex-employee, who every night would find piles of security tags in the fitting rooms which had been removed from apparel that day. “They would spend insane amounts and at the same time steal a few items because they felt that since they had spent so much money, they were entitled to freebies.”

A manager from Macy’s concurred, “It’s often the best customers who steal the most. They’re spending $100,000 a year, but just stole a bag for $5,000,” the ex-staffer said. (Jamieson, Why The Rich Feel Entitled to Shoplift, The New York Post, Aug. 9, 2015)

Instead of motivation preceding action, a theft case can present an example of action preceding motivation. Since impulsive and unexamined acts can result in detrimental consequences, I have to grudgingly admit that my mother’s adage, “Think before you act” is sound advice.

A MILLENNIAL’S GUIDE: YOU AND YOUR PENDING FELONY

This week in court, a 19 year old facing a felony drug case characterized the criminal allegations and the corresponding suspension from his university as a “bump in the road.” His life had been on hold for six months while the criminal case was pending. He had been kicked out of college and was back living with his family. The tuition and dorm fees secured by parental personal loans had been forfeited. A 28 day residential drug treatment, paid for by his parents and their health insurance had been completed last year but the defendant had continued to smoke marijuana. As the defendant spoke, it was apparent that he alone failed to appreciate the severity of his situation.

To all Millennials: if you find yourself facing a felony charge, here are some tips:

1. This is serious. A felony conviction will bar you from desired education, employment, immigration, licensing and additional significant opportunities. You have gone through life with your parents, teachers etc. minimizing characterizations of harsh situations. All sugar coating aside, it is time to dig deep and comprehend that there are consequences to actions.
2. Once you can appreciate that this is some serious shit, begin to work with your lawyer to formulate a strategy for your defense. The goal is to protect your future even if it means sacrifice in the present. A reduction in charges or a dismissal is worth suffering through jail, community service, rehab or counseling. Be grateful if you get this chance.
3. If you are asked questions by the judge or an attorney, THINK before you answer. A glib or thoughtless comment will reflect really badly and possibly make the judge or the prosecutor withdraw the break that was about to be bestowed upon you. This is referred to this as “snatching defeat from the jaws of victory.” Don’t let it happen to you.
4. If you are put on probation, given a deferred judgment or conditional discharge, don’t blow it. If you violate the terms of probation, you will go to prison. State prison. Not television prison, not “Orange is the New Black” prison but scary real life prison where you are locked in with dangerous adult criminals. If you are given a conditional discharge or deferral, you have an OPPORTUNITY to earn a dismissal. Fulfill your obligations and don’t pick up any new charges and get that dismissal. Once dismissed, the case can be expunged and you can begin anew with an unmarred future and a lot more wisdom.

16-17 year olds catch a break in Orange County: Misdemeanor Diversion Program

North Carolina is one of only two* states who treat 16-17 year olds as adults for criminal law purposes but effective April 15, 2016, a misdemeanor diversion program will ameliorate this inequity. Instead of being arrested or receiving a citation for alleged misdemeanor violations, a “youth citation” will be issued and participation in an in a diversion plan tailored to the needs of the specific teen is required. Successful completion of community service and any recommended counseling or substance abuse rehabilitation will result in the absence of filing of criminal charges. No tangible or computer record of the offense will exist and no mug shot will be taken which could hamper one’s future educational, employment or personal opportunities.
The diversion program is administered by the Criminal Justice Resource Manager and should take approximately 90 days to complete. Only teens with no prior criminal record and with allegations that are not sex-based will qualify for participation.
While we should continue to fight to amend the statute and increase the age for criminal responsibility from 16 to 18 years, Orange County teens can now join Durham County teens in catching a break.

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* New York is the other state.

DEATH BY TEXT

You are driving when your phone buzzes with an alert. You take your eyes off the road, ascertain the location of the phone, grab it and look at it to determine the source of the vibration. Is it a text, an email, what? If you are security minded, in order to read the message, you swipe your finger over the fingerprint reader or enter a password or a pass code or trace a shape with your finger. Once you have gained access to the phone, you look at the device again to read the contents of the message. Now, not only are you not looking at the road but you have removed at least one hand from the wheel, but maybe both hands. Did you have to hold the phone in one hand and use your other hand to enter the access code? Did you have to steady the steering wheel with your knee? Also, you are no longer thinking of the road conditions and traffic because you are paying attention to gaining access to the message, reading the message and possibly, although it is against the law, typing back a response. Well the sender is waiting for a response aren’t they? While all this is happening, you are moving through space at what speed? Are you on the interstate going 70 mph, or on a country road doing 50, or in city traffic, creeping along? Have you had close calls before where your car drifted over the center line while you, just for a second, glanced at the phone? Or maybe your car veered towards the shoulder. Or maybe you slammed on your brake and just avoided hitting the bumper of the car in front of you. Lucky. Whew. Lucky until you aren’t. What happens when you hit a person or another car?
As an admitted distracted driver and a geeky criminal defense lawyer, I wondered what criminal responsibility would lie with someone who kills another person as a result of texting. Death could result from plowing into a pedestrian, a cyclist or a moped/scooter driver. There could be collision between your car and another car. Hey, that car came out of nowhere! What about the death of a passenger in your own car? Many possibilities.
I expect that over time texting while driving will be punished as DUI/DWI is now. The police will use a Textalyzer1 to analyze cell phones at a crash site to determine whether the driver was distracted because of recent use of a mobile device.
What are potential punishments?
At the top of the punishment pyramid is Second Degree Murder. Here, implied malice is shown if the texter had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.2 This mental state could be proven by knowledge imparted upon the driver from any previous violation(s) of the law. For example, if you got a ticket for driving while texting and as part of your punishment, you were required to participate in an educational program dealing with the dangerous and potentially fatal results of texting and driving and signed an advisement to that effect, you would be on notice. So when you subsequently texted while driving, in a trial, prosecutor could offer as evidence that advisement to prove that when you continued to text while driving, you were doing so with a conscious disregard that injury or death would result from any resulting collision when you were driving in an inherently dangerous manner.
A much easier felony to prove yet still serious is the common law offense of Involuntary Manslaughter: the killing of another person by an unlawful act that does not amount to a felony and is not ordinarily dangerous to life or by a culpably negligent act. Texting while driving, a violation of G.S. 20-137.4(A), should constitute a culpably negligent act because texting is an intentional violation of a statute which is intended to protect human life. A person acts in a culpably negligent way if he knows the probable consequences of the action but acts intentionally, recklessly or wantonly indifferent to the results.
Finally, misdemeanor Death by Vehicle3 occurs when an unintentional death results from the violation of a law relating to the operation, use of a vehicle or regarding the regulation of traffic and death proximately results from this violation. Death by Motor Vehicle applies when the circumstances do not establish the culpable negligence.
This blog only touches on possible criminal ramifications. There would be a civil suit for money as well as the emotional trauma inflicted upon you, your loved ones and the family of the victim. Most importantly, you would have caused the tragic extinguishment of a person’s existence prematurely. All because you needed to look at that text.
I am putting my phone under my seat or in the trunk, what about you?
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1.Cellebrite a company focused on the creation of data extraction, transfer and analysis devices for cell phones and mobile devices, is developing the textanalyzer.
2.State v. McAllister, 138 N.C. App. 252 (2000)
3.G.S. 20-141.4(a2)

Please Governor McCrory, I Don’t Want To Be A Secret Peeper!

Today I read that Governor McCrory has set up a 24 hour bathroom hotline to facilitate the reporting of persons of questionable gender, an “HB2 Offender Hotline.”
Although I doubt the veracity of this “news story,” don’t get any ideas. To the citizens of North Carolina, do not think that you can discreetly take photographs in the bathroom of gender-suspicious persons. There are a plethora of potential pitfalls with collecting evidence and taking photographs in a bathroom while an unsuspecting person is trying to engage in a private excretory function. In addition to being morally offensive, that method of evidence collection is called Secret Peeping and North Carolina law prohibits it. North Carolina General Statute § 14-202 is the Secret Peeping law which prohibits spying or secretly peeping into a room or bathroom for the purpose of viewing the body of, or the undergarments worn by, another person without their consent. Violation of the law is a Class 1 misdemeanor. Additionally, any person, who secretly peeps while in possession of any device which may be used to create a photographic image, is guilty of a Class A1 misdemeanor.
I will not be your peeper and I advise my other peeps not to peep either.