On December 15, 2020, the N.C. Court of Appeals held that an immunity from prosecution statute does not apply to a drug possession charge when a defendant failed to raise the defense of immunity during trial after she overdosed, sought medical assistance, and evidence was gathered therefrom. See State v. Osborne, ___ N.C. App. ___, 2020 N.C. App. LEXIS 908 (Dec. 15, 2020).
In 2013, the N.C. Governor signed an act into law which provided limited immunity from prosecution for individuals (1) experiencing a drug overdose and in need of medical assistance or (2) seeking medical assistance for another experiencing a drug overdose. See N.C. Sess. Law 2013-23; N.C. Gen. Stat. §§ 90-96.2 and 90-106.2.
In 2014, law enforcement responded to a possible drug overdose in a hotel bathroom in Archdale, N.C. The Defendant was found unconscious by officers, later regaining consciousness after receiving an anti-overdose drug and telling officers she “had ingested heroin.” Officers later seized a rock-like substance in the room.
In 2018, a Randolph County jury convicted the Defendant of (1) Possession of Heroin and (2) two counts of Misdemeanor Child Abuse. That same year, the N.C. Court of Appeals reversed, stating the trial court should have granted the Defendant’s Motion to Dismiss for Insufficiency of Evidence for the Possession of Heroin.
In 2019, the N.C. Supreme Court granted discretionary review. During oral argument—and for the first time ever in the case—Justice Anita Earls questioned whether the immunity statute applied. The N.C. Supreme Court affirmed the trial court’s denial of Defendant’s Motion to Dismiss; however, it remanded the issues of (1) the immunity statute and (2) plain error review to the N.C. Court of Appeals.
On remand, the N.C. Court of Appeals held the immunity statute was a “type of immunity [which] must be asserted as a defense . . . in the trial court . . . .” State v. Osborne, ___ N.C. App. ___, 2020 N.C. App. LEXIS 908, *9 (Dec. 15, 2020).
In reaching this holding, the Court first questioned whether the issue was preserved for appellate review which generally requires a timely request, objection, or motion at the trial court. See N.C. R. App. P. 10(a)(1). However, subject matter jurisdiction issues may be raised at any time, even on appeal, thus permitting appellate review. See State v. Frink, 177 N.C. App. 144, 147 (2006).
The Court ruled, in this case, that the immunity statute did not affect subject matter jurisdiction. The statute is entitled “Drug-related overdose treatment; limited immunity." (emphasis added). The statute states that “A person who experiences a drug-related overdose and is in need of medical assistance shall not be prosecuted for . . . (iii) a felony violation of G.S. 90-95(a)(3) possession of less than one gram of heroin . . . if the evidence for prosecution under those sections was obtained as a result of the drug-related overdose and need for medical assistance.” N.C. Gen. Stat. § 90-96.2 (emphasis added).
The Court noted “immunities” are not “mere bars to conviction or judgment; they are protections against being charged or haled into court at all.” State v. Osborne, ___ N.C. App. ___, 2020 N.C. App. LEXIS 908, *8 (Dec. 15, 2020). However, the Court also noted “immunities” are not generally treated as “matters of subject matter jurisdiction; immunities generally are waived if not asserted and cannot be raised for the first time on appeal.” Id. (citing Lambert v. Town of Sylva, 259 N.C. App. 294, 301 (2018); Northwestern Fin. Group v. County of Gaston, 110 N.C. App. 531, 534 (1993)) (emphasis added).
For “immunities” to affect “matters of subject matter jurisdiction,” the Court goes beyond the label given by the General Assembly to inquire if an immunity deprives the trial court of subject matter jurisdiction. Id. This inquiry must show a "clear indication that the provision was meant to carry jurisdictional consequences." Id.
The Court held that the immunity statute did not clearly indicate that it carried jurisdictional consequences. Id. In reaching this determination, the Court found the plain language of the statute to be instructive. In particular, under N.C. Gen. Stat. § 15A-954, there are different categories describing how to move to dismiss when the "defendant has been granted immunity by law from prosecution" and when the "court has no jurisdiction of the offense charged." See N.C. Gen. Stat. § 15A-954(a)(8), (9). (emphasis added). Because the statute at issue did not address jurisdiction, the Court concluded the General Assembly did not clearly indicate that it carried jurisdictional consequences. Therefore, since the defendant did not present the argument of immunity to the trial court, she waived it. See N.C. R. App. P. 10(a)(1).
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