Wednesday, December 17, 2008

NC Court of Appeals Decisions (12.16.2008)

NC Court of Appeals Criminal Decisions for 12/16/08


State v. Cowan, (08-470) . Finding that admission of evidence, in a drug trafficking case, that the Defendant's aunt was previously convicted of drug trafficking was inappropriate, as such information was irrelevant. Nonetheless, the Court found such admission not to be prejudicial and ruled it harmless error.

State v. English, (08-613). Ordering a new trial where Defendant was deprived of his right to the final closing argument under Rule 10, as he did not introduce any evidence. A Defendant does not introduce evidence unless it is offered as substantive evidence or to the jury as illustrative, corroborative, or impeachment evidence. Objects offered to refresh recollection are not offered into evidence. New evidence, raised on cross, does not count as "admission of evidence," unless it is not relevant to issues already present in the case (e.g. self-defense). Here, Defendant's cross-examination of a police officer included impeaching him with prior statements and discussing aspects of his testimony, that did not present "new matter" to the jury. Because this did not constitute offering evidence, the Defendant should have been allowed the final closing argument.

Other Decisions with No Reversal

State v. Anderson, (08-67) - Double jeopardy; exploitation of minor.

State v. Bare, (08-221). No error under 403 of admission of graphic photographs of the victim's decaying corpse.

State v. Charles, (08-601) - Jury instructions, motion to dismiss, and exclusion of evidence

State v. Ford, (08-277). Note: Dissent on failure to instruct jury on common law robbery.

State v. Hussey, (08-620) - Robbery with a dangerous weapon; Sufficiency of the evidence; Pretrial identification; In-court identification; Prior record level; Stipulation

State v. Isenhour, (08-478) - Defendant alleged 4th Amendment violation and sought to exclude evidence of drugs recovered pursuant to a search of his vehicle

State v. Lawson, (07-1507) - Prosecutor closing argument; failure to include evidence; jury instructions; directed verdict of not guilty; defective indictment

State v. Wooten, (08-734) - Satellite-based monitoring; Sex offender registration; In effective assistance for counsel; Recidivist

Saturday, December 13, 2008

NC Supreme Court Decisions (12/12/08)

Criminal Decisions of the NC Supreme Court. Full decisions available here.

Long Notes
State v. Taylor, 362 NC 514, Capital Case. Upholding the capital verdict, finding hat the failure of police to preserve crime scene photos that might have corroborated Defendant's theory of the case did not violate due process, as there was no evidence of bad faith; denied a Batson challenge, where the DA accepted two African-American jurors; finding no error in failure to instruct on 2nd degree murder; finding no error in instruction to jurors that they can consider flight as evidence of commission of murder; finding that state witnesses who gave impact testimony did not unfairly taint the jury by offering "fix-a-flat" to a juror who had a flat tire one evening; and denying other asserted grounds. Notably, in proportionality review, the Court distinguished this case from Benson, in which the court found that robbery killings where pecuniary gain is the only aggravator are not appropriate death cases, because Benson, unlike Taylor, pleaded guilty and waived the guilt-innocence phase--more proof that proportionality review is meaningless in NC.

State v. Lane, 362 NC 667, Capital Case. Remanded the case to Superior Court in light of Indiana v. Edwards, on issue of whether Defendant was competent to waive trial counsel-- in that gray area of Edwards where a Defendant is competent enough to stand trial under Dusky, but not enough to represent himself.

State v. Maready, 362 NC 614, Overturning the Court of Appeals suppression, the SC found reasonable suspicion to make a traffic stop, where another driver told police he saw the Defendant run stop lights and appear drunk; finding submission to jury of prior DWIs for purpose of proving malice in 2nd degree murder prosecution based on vehicular homicide, while possibly error, did not affect the jury's verdict; and finding admission of prior traffic convicts that were more than 16 years old was not plain error under 404(b) because Defendant, in addition to the old DWI, had 4 more recent DWIs. Further, the court limits Goodman to its facts and find that convictions that are 16 years old may be admissible if they are relevant to state of mind.

State v. Smith, 362 NC 583, Court of Appeals reversed a 1st degree sexual offense charge and sent back for re-trial an indecent liberties charge. SC found that, under the corpus delicti rule that the state may not rely solely on extrajudicial confessions and that there was not substantial independent evidence to corroborate the Defendant's confession. Strong corroboration is necessary where there is no proof of loss or injury (the victim denied the abuse occurred). As such, the conviction was reversed. The Court found instructions on the indecent liberty charge were appropriate and reversed the grant of a new trial on that issue. Remanded to Court of Appeals for remaining assignments of error.

State v. Williams, 362 NC 628. Upholding dismissal of case due to state's "flagrant violation" of constitutional rights by withholding evidence--under NCGS 15A-954(a)(4) requires dismissal where there is a flagrant violation resulting in irreprable prejudice to the Defendant's preparation of the case. Defendant, while incarcerated, sued the District Attorney for civil rights violations. He was moved to a different county jail and severely beaten by correctional officers. The Stanly County DA placed a poster on their wall with pictures of the defendant without bruises and one with bruises all over his face and a caption "After he sue'd the D.A.'s office." His attorney made requests and subpoenaed a copy of this poster to use in defense of his assault on a corrections officer case. The DA did not respond. ADA Higdon later admitted the existence of the poster and its destruction.

Short Notes
State v. Corbett, 362 NC 672. Per curiam affirmance.

State v. Duncan, 362 NC 665. Capital Case Reversing Court of Appeals IAC finding without prejudice to re-asserting that claim in a MAR.

Friday, December 12, 2008

Blue guilty of murder, rape of grandmother

James Junior Blu
By Stephanie S. Beecher
Thursday, December 11, 2008 12:04 PM EST

The Robesonian
LUMBERTON — A Maxton man accused of raping and killing his 69-year-old grandmother and stealing money from her to purchase drugs has been found guilty after an eight-day trial in Superior Court.

The sentencing of James Junior Blue, 34, who was convicted of first-degree murder, armed robbery and second-degree rape, begins today. Prosecutors are seeking the death penalty. The jury announced the verdict on Wednesday after it deliberated for five hours over two days.

Blue confessed to killing his maternal grandmother, Shirley Locklear, and stealing money to buy crack cocaine, in November 2005. His confession was presented during the trial, held before Judge Ola Lewis.

According to District Attorney Johnson Britt, the judge granted a jury request on Wednesday to review a nine-page, detailed statement in which Blue confessed to the crime.

Other pieces of evidence requested for review by the jury included a photograph of the room where Locklear died, a cooking pot used in the beating, and the testimony of one defense witness.

Britt said the jury also reviewed a videotape of former sheriff’s Lt. Ricky Britt sitting beside Blue at the Sheriff’s Office reading the nine-page statement aloud.

The jury first watched the tape on Monday.

In the videotape, recorded the day Blue took deputies and family members to his grandmother’s body, Blue acknowledges his actions.

“I lied,” Blue is heard saying on the videotape. “I hurt my whole family. All I wanted was cocaine.”

He also talked about thinking of killing his grandmother beforehand — moments when he indulged in crack cocaine, drank alcohol and contemplated whether or not “the crack was worth killing my grandmother for.”

According to sheriff’s reports, on Nov. 6, 2005, Blue used a piece of wood to bludgeon his grandmother as she sat in the living room, and then assaulted her with a cooking pot. He then used a cord to strangle her before dragging her body to the kitchen, where she was raped.

Blue then wrapped her body in a tarp, then a comforter and used his mother’s car to dispose of her body in a ditch two miles from his Alford Road home.

Family members filed a missing person’s report the next day when Locklear failed to attend a birthday party. Authorities said Blue attended the party and left when his family began questioning him about his grandmother’s whereabouts.

Two days later, Blue led deputies to the body.

As the video played on Monday, Blue sat motionless with his head hung down and his eyes closed. Several family members sat somberly behind Blue, watching the video replay the gruesome details.

In a letter mailed to The Robesonian from his jail cell, Blue stated that he has his family’s support.

Blue wrote that the real issues lie with “the drug dealers who are the ones behind the problems like mine.”

The trial began on Dec. 1.

Saturday, December 6, 2008

Murder Trial Takes a Toll on Jurors

Dunn Daily Record

David Anderson, Jr.
Reporter for The Daily Record

Thursday, December 04, 2008

"This is something that no one should ever have to go through," Jenifer McLamb said after she, along with 11 other Sampson County citizens, sentenced Kenneth Mark Hartley to a life in prison.

Nearly seven weeks after the first jurors were picked, the 12 people pushed head first into an unbelievable tragedy can now get back to living normal lives. Being a critical part of a capital murder trial has left its mark on them, however.

"Everybody said it was a life-changing event when we first got in there," said another juror who asked to have his name withheld. "It made you wake up."

Mr. Hartley, 26, murdered his mother and his young brother before sexually molesting his 13-year-old sister and killing her in the family's home in Plain View on June 18, 2004. Jurors could have sentenced Mr. Hartley to death, but he will live out his life behind bars instead.

One juror said the trauma of seeing the victims' photos, coupled with the tug-of-war game prosecutors and defense attorneys played with his emotions was especially taxing.

"The defense, they're trying to make you cry. The state, they're trying to make you mad. You just have so many emotions going back and forth," he said. "Those first two weeks, they were real tough. That first night, I couldn't sleep. I couldn't eat. I kept waking up every night. It was tough."

Jurors said deciding that Mr. Hartley was guilty of his crimes was the easiest decision they made. During the first hour of deliberations, 11 of them had decided Mr. Hartley was guilty of first-degree murder, but one juror was pushing hard for innocence.

The first day, a Friday, only allowed them an hour to talk. When Judge D. Jack Hooks told the jurors to come back to court the next morning, the lone juror had changed his position.

"He put a little pressure on us when he told us to come in on that Saturday," said one juror who was originally set on a guilty verdict. "There was one guy that wanted him to be innocent. When we came back on Saturday, he said, "Let's get out of here.'"

Jurors agreed the most important testimony in the case came from Dr. Charles Vance, a psychiatrist at Dorothea Dix Hospital in Raleigh. Dr. Vance testified at the request of prosecutors in the first stage of the trial. He told jurors Mr. Hartley knew what he was doing when he killed his family because he had a goal in mind and he made a plan to accomplish that goal.

"His final statement was so, pretty much damning," a juror said. "That's what did it."

During the sentencing phase of the trial, Dr. Vance came back to help defense attorneys save Mr. Hartley's life. Dr. Vance emphasized the fact that although Mr. Hartley should be held responsible for his crimes, there was no question that he was severely mentally ill.

"Dr. Vance was really our main person," Mrs. McLamb said. "It was just dramatic for all of us that he was able to testify for both sides. He had a lot of value to what he said."

Other witnesses may have done more harm than good, according to one of the jurors. Dr. Manish Fozdar, a neuropsychiatrist who testified that Mr. Hartley had no idea what he was doing when he killed his family, seemed like an arrogant "professional witness" to jurors, who were told Dr. Fozdar was being paid $400 an hour to testify on behalf of Mr. Hartley.

Another witness that had a big impact on jurors was Special Agent Shelia Quick of the SBI. Agent Quick conducted the initial interview with Mr. Hartley and transcribed his confession. Although she testified during the second day of the trial, she made an appearance in the courtroom nearly every day of the trial.

"She kind of hurt the state a little bit by coming here every day," a juror said. "It was like, how can the arresting officer be there every day after every day? Don't she have a job to do or something?"

Jurors carefully examined and reexamined evidence before making their decisions. During the trial, Mallie Tyndall, Mr. Hartley's maternal grandmother, testified her grandson had received a box of Huggies for a birthday gift when he was 7 - an embarrassing moment in the young man's life. When jurors took a closer look at the picture Ms. Tyndall offered to illustrate the story, they had some doubts about her testimony.

"In fact, it was not Huggies diapers, it was Huggies shoes. It clearly said sportswear on the box," Mrs. McLamb said. "That was something that kind of shocked us all."

Jurors, unable to speak to anyone about the trial during testimony, were finally able to relieve the tension of their emotions during deliberations. Mrs. McLamb said prayer was paramount to her wellbeing during the trial, as well as the decision-making process.

"It took a whole lot of prayer, and that was something that we did every time we went in to deliberate or when we went in for the penalty phase," she said.

One juror said participating in the trial opened his eyes to how important his family is. He asked himself, "Am I missing something in my life to make sure my son doesn't end up sitting over there?"

Every juror interviewed was glad the ordeal was over.

"I feel very sorry for the family," Mrs. McLamb said. "I'm glad that it's over and I hope that we gave them the justice that they were looking for."

Long Time Coming

District Attorney Dewey Hudson admitted it took the Sampson County Sheriff's Office less than a day to solve the brutal murder, but it was another four and a half years before the North Carolina Court System was able to convict Mr. Hartley.

"That something that's very embarrassing to me," Mr. Hudson said.

Mr. Hudson said laws passed over the last decade intended to protect the rights of defendants have gone too far and bogged down the court system. He said in this case, safeguards did more harm than good, dragging out a painful situation and preventing a broken family from healing.

"I think it's been cruel and unusual punishment for the victims' family," Mr. Hudson said.

Mr. Hudson said he was obligated to seek the death penalty in this case because of the brutality of the murders. If he hadn't, defense attorneys across the state would have been able to use it as an argument to exclude capital punishment from other, less severe murders.

"Seldom do you have a case where three people are murdered at one time by one person," Mr. Hudson said. "In fact, I've only had one other case like that in my 31 years."

"This is about as bad as bad gets," he added.

With an office strapped for resources - 18 prosecutors who handle everything from traffic tickets to capital murder trials in his four-county district, which includes nearly 300,000 people - Mr. Hudson said it's tough to plow through the thousands of pending felony cases his office deals with in a timely manner.

With Mr. Hartley's trial over, the district still has 54 pending first-degree murder cases awaiting trial.

While he is disappointed in the outcome of this case, Mr. Hudson said he wanted to let a jury decide Mr. Hartley's fate and they have spoken. While he hoped for a death sentence, Mr. Hudson doesn't think a life in prison is an easy way out.

"On death row he would have had his own private cell. Now he's going to be thrown among the general criminal population and I can assure you they're not going to care too much for him once they find out what he did to his entire family," Mr. Hudson said. "He might be happy right now, but when he gets to Central Prison ... I don't think he's going to be too happy with that."

Wednesday, December 3, 2008

NC Court of Appeals Decisions (12.2.08)

NC Court of Appeals Criminal Decisions


State v. Branch, (08-20). Defendant fled in his car from an illegal traffic stop. The officer had his hand inside the car and ran with the car for 758 feet. He was not injured, but his boots and pants were damaged. The Court found that, while the Defendant had the right to use reasonable force to prevent the unlawful detention, the Defendant used unreasonable force by driving away with the officer's hand inside. (Query: Isn't reasonable force that necessary to prevent the unlawful arrest and no more. When a cop stops a car illegally, isn't the only force available to prevent the unlawful arrest to drive away? Apparently not.)

State v. Conway, (08-106). Reversing conviction for trafficking more than 400 grams of Methamphetamine, where state's evidence failed to show there was more than a detectable amount of Methamphetamine in a 530 gram liquid mixture, as the exact amount was never determined and the liquid was in a toxic state--it was incompletely manufactured. The statutes for cocaine, heroin, LSD, and MDMA include a clause of 400 grams of "any mixture containing such substance" whereas the Methamphetamine statute does not.

The Court upheld conviction for manufacturing Methamphetamine.

State v. Dix, (07-1440). Finding that this:

McMasters: Okay. And will you answer some questions for me?
Defendant: I'm probably gonna have to have a lawyer.
McMasters: Okay but, ya know, I mean, okay. But, ya know, I mean, it's up to you if you wanna answer questions or not. I mean, you can answer till you don't feel comfortable, whatever and then not answer. Ya know, that's totally up to you. I know earlier you said you was wanting to talk to me because . . . .
Defendant: Yeah.
McMasters: . . . of course there's two sides . . .
Defendant: Yeah.
McMasters: . . . to every story.
Defendant: But, no . . .
McMasters: Uhm . . .
Defendant: I . . .
McMasters: You wanna talk, ok.
Defendant: Yeah.

Was an ambiguous assertion of Miranda rights, so no Miranda violation by continued questioning. Reversed lower court suppression of Defendant's statements.

No reversal and no interesting issues:

State v. Hall, (07-1412). MAR in a murder conviction, based on newly discovered evidence of letters showing a snitch's bias that were unopened, in the possession of the DA and could have been used to impeach that witness. Denied, finding such evidence was cumulative and only would be used to impeach. Other issues denied as well.

State v. Rogers, (08-188). No error where court refused to appoint counsel, after Defendant had fired prior counsels and been allowed to substitute, then signed a waiver of counsel. Denial of his later requests for counsel, after he said he couldn't competently try his own case, were not error.

State v Smith, (07-812). Defendant contends that, under acting in concert theory, because his co-conspirator dropped the victim of kidnapping off in a safe place, he cannot be convicted of 1st degree kidnapping. The court found that acting-in-concert could not be used in this way. Acting in concert only works to the detriment of the Defendant; cannot get credit for dropping off in a safe place unless personally involved in that action. Also ruled no error on an Allen charge to the jury.

Monday, November 24, 2008

Jury recommends death for Little for killing cabdriver

[Editor's Comment: First NC Death Sentence of 2008]

Winston-Salem Journal, November 21, 2008

James Ray Little III, right, enters court Wednesday with his attorney, Clark Fischer.

A jury in Forsyth Superior Court today recommended a death sentence for James Ray Little III for murdering a cabdriver in 2006.

Little, 22, was convicted Monday of robbing and fatally shooting Bira Gueye on Patrick Street, in northeastern Winston-Salem. Jurors began deciding yesterday whether the crime deserved death or life in prison.

After more than four hours of discussing the case, jurors returned a unanimous recommendation for the death penalty.

As Judge Stuart Albright read the jury's findings just after noon, Little's mother, Susan Bulger, cried, "Oh my god, no. No!"

Bulger was too distraught to leave the courtroom. An ambulance was called for her after she said she could not breathe.

The jury recommendation requires Albright to sentence Little to death. Albright said he would do so at 2, after the courthouse lunch break.

In her closing argument yesterday, Jennifer Martin, an assistant district attorney, said that Little's attorneys were trying to use his troubled upbringing and limited intelligence to keep jurors from the right punishment.

"We're asking you to let the blame rest where it deserves to be," Martin said. "The punishment in this case should be severe. It should be the ultimate punishment."

Clark Fischer and Chris Beechler, attorneys for Little, argued for about 20 different factors that could lessen the severity of the crime, including evidence of a troubled upbringing.

"When James came into this world, he had serious emotional and intellectual limitations. He never had the tools to succeed in society," Fischer said. "The state's argument is the age-old cry for revenge."

James Hilkey, a psychologist testifying for Little's defense, said that Little's crime fits a pattern of acting impulsively.

"He doesn't have the intellectual ability to stop, think and deliberate about the action," Hilkey said. "He's quick to judge, quick to act."

Under state law, anyone with an IQ of 70 or lower is considered mentally retarded and cannot be executed.

A test showed Little's IQ is 79, on the upper end of the range for borderline IQ, Hilkey said.

Little wandered the streets of northeastern Winston-Salem on the night of Oct. 4 and early the next morning, looking for people to rob to buy marijuana, according to trial testimony and his confession to police.

He robbed and pistol-whipped two men in a park, then used one of their cell phones to call a cab. He planned to rob the first cab, but reconsidered after he recognized the driver, he told police.

Gueye's cab was then dispatched to pick up Little on Patrick Street. Little robbed Gueye and shot him in the back twice.

Jurors rejected Little's explanation that he shot because Gueye reached for the gun. They found him guilty of first-degree murder, armed robbery and possession of a firearm by a felon.

In the death-penalty phase of the trial, prosecutors showed that Little has past convictions for larceny from a person, felony larceny and motor-vehicle theft.

He also had discipline problems at the Forsyth County Jail, and he tried to fight a courtroom deputy after his conviction Monday.

When Little was 18, he knocked down a 9-year-old boy and took his lunch money. He pleaded guilty to larceny from a person. That act, prosecutors argue, qualifies as a past violent felony -- one of three factors they say that makes the latest crime merit the death penalty. The two others are that the murder was committed for financial gain -- Little took at least $20 from Gueye -- and that it was part of a pattern of violent crime that night.

Beechler acknowledged that Little's knocking down of the boy was bad, but he said that "it doesn't tip the scales in favor of sentencing him to death."

Beechler and Fisher have highlighted Little's troubled upbringing -- his mother's drug abuse before he was born, frequent moves and occasional evictions and his absent father.

Little regularly had discipline problems in school but was repeatedly promoted to the next grade despite his failing marks.

By the time he dropped out of Carver High School in the ninth grade, his English teacher was assigning him work at the third-grade level.

"What you have seen in this court is a child in a man's body," Fischer said. "He is not the worst of the worst."

For most of their arguments, the two sides argued different sides of the same fact.

For example, Little's family life included two brothers who have served time in prison, part of a pattern of people around Little who have set poor examples, his attorneys argued.

But he also has a brother who attended college, Martin said.

"You cannot continue to blame everybody else for your problems," she said.

Wednesday, November 19, 2008

NC Court of Appeals Decisions (11.18.08)

NC Court of Appeals Criminal Decisions

Discussion of Reversals or Other Interesting Issues

State v. Foster, (08-466). Defense counsel wrongly told a client that the maximum (minimum) punishment she could face at trial was 70 months, when it was actually 140 months, if the two charges were run consecutively (as they ultimately were). Court dismissed without prejudice the IAC claim, based on an inadequate record, with leave to file a MAR.

State v. Lee, (08-122). Appeal of sentence. Trial court found Defendant was a level III offender based on 5 class A1 or 1 misdemeanors on his record. Included in this was a NJ conviction for possession of a controlled substance on school property. Defendant appealed on grounds that state failed to establish that the NJ conviction was substantially similar to a corresponding NC offense (see N.C. Gen. Stat. § 15A-1340.14(e)). The Defendant signed a stipulation that it was substantially similar as part of the plea, but this is ineffective, because this is a question of law that must be resolved by the trial court. The stipulation is not adequate proof that the offenses are substantially similar. Case remanded for re-sentencing.

State v. Ramos, (07-994). Conviction for damaging a computer network reversed because trial court failed to instruct jury that it must determine that the Defendant "willfully" deleted files. (Tyson dissented from this decision).

State v. Smith, (08-533). Defendant pleaded guilty to possession with intent to sell of cocaine and habitual felon status. The plea agreement included the right to appeal pre-trial motions. One of those motions was about his habitual felon status--which the court of appeals has no jurisdiction to hear. As such, Defendant did not receive the benefit of his bargained for plea. The plea is vacated and the case is remanded for trial below.

No reversals, no terribly interesting arguments in:

State v. Alston, (08-230) - Sufficiency of Evidence; Constructive possession (note: dissenting opinion by Elmore on grounds that many other persons had access to house where drugs were found and there was insufficient evidence that the Defendant had constructive possession thereof).

State v. Washington, (08-217) - Right to investigatory stop; probable cause to arrest based on resist; obstruct/delay offense; whether encounter with officers was consensual

Wednesday, November 5, 2008

NC Court of Appeals Decisions (11.4.08)

NC Court of Appeals Criminal Decisions


State v. Bowden, (08-372). Reversing lower court denial of an MAR under the old N.C.G.S. section 14-2, finding that a life sentence equals 80 years, and it is not within the Dept. of Corrections authority to determine if life sentences are "commuted" to 80 years. Remanded for calculation of time, including reduction credits, to determine if Bowden is eligible for release.

State v. Jacobs, (04-541-2). Trial court erred by unilaterally finding aggravating factors, increasing the Defendant's sentence. Because the Court relied on evidence necessary to proving the underlying charge in doing so, such error was not harmless. Remanded for resentencing.

State v. Phair, (08-326). Defendse Attorney Nicole Phair appeals two counts of contempt. First, she was found in contempt because her cell phone rang during the State's examination of a witness. This was overturned as it was clearly a mistake, not "willful" conduct, as required to be contempt. Second, she was found in contempt for asking her client whether the police contacted him after a certain date, because this was a suggestion that police contacted him after his rights to counsel attached and that police acted innappropriately. The Court reversed, stating:

"Defendant's question was logical in terms of context: the State had just finished its cross-examination of the accused regarding whether the accused had provided address information to the investigating detective. On redirect, defendant asked whether the investigating detective had asked for this information on the date the accused made his statement to the detective; when the accused answered in the negative, defendant asked whether the detective asked for the address information after that time. This question was the basis of finding defendant in contempt.
As mentioned above, N.C. Gen. Stat. § 5A-11(a)(1) states that “[w]illful behavior committed during the sitting of a court and directly tending to interrupt its proceedings” constitutes criminal contempt. Defendant again argues that she did not intend to mislead the jury and, thus, did not willfully violate this statute.
While it is true that, given some thought, a juror hearing defendant's question might have understood it to have the improper implication the trial court gave it, the court's holding defendant in contempt seems an extreme reaction to a question that defendant could have easily been told to rephrase. A reading of the transcript reveals decided animosity between the trial court judge and defendant; during the discussion out of the jury's presence on the propriety of this question, for example, the judge made several comments like: “you just make sure you pay $1,000 within the next 10 days[;] otherwise I will personally report you to the statebar”; “I don't care if you appeal”; “And you don't be arguing with me. Do I put you in jail right now[?]”; and “The only thing you had to do was keep your mouth closed and admit you'd made a mistake.”
Again, it does not appear that defendant's actions were willful or intended to mislead anyone present. In context, the question appears to be a logical next step in the course of questioning to any reader of the transcript. As such, we hold that the trial court's findings of fact are not supported by competent evidence and do not in turn support the conclusions of law in this order. Thus, we reverse it."

No Error Found and no terribly interesting arguments in:

State v. Ash, (07-1456) - Voluntary intoxication; Corpus Delicti Rule; felony murder

State v. Ballard, (08-196) - Jury instructions

State v. Coley, (07-645) - Imperfect self-defense jury instruction; competent to stand trial; Fifth Amendment right to remain silent (while violative of the 5th Amendment, no plain error meriting reversal where a detective told the jury that he attempted to question the defendant and the defendant invoked his Miranda rights).

State v. Robledo, (07-1568) - Knowing possession; conspiracy to traffic marijuana

Wednesday, October 22, 2008

Court of Appeals Decisions, 10/21/08

Update: Criminal Decisions of the NC Court of Appeals issued 10/21/08. Full opinions available by clicking on case. No reversals.

Long Notes.
State v. Allen, (08-215). In assault with a deadly weapon causing serious injury case, Defendant contends that the use of hands and fists do not constituted a deadly weapon and that he did not inflict serious injury. Held. Hands and fists may be deadly weapons, depending on how they were used and the relative size of the parties. Here, Defendant was 25, 7" taller, and 40lbs heavier than the female victim, making his hands deadly weapons. Serious injury occurred here, as the victim had traumatic head injuries, extreme facial bruising and swelling--including an eye swollen shut for a month, and was bleeding from her ear and nose. Also distinguishes Hinton, which found that hands cannot be a dangerous weapon for charge of robbery with a dangerous weapon, finding the standards for dangerous weapon in that charge is different than in assault charges, even though they are lesser included offenses.

State v. Chappelle, (07-1312). Held. Evidence of prior fight was admissible under 404(b) to show motive, including details of the fight that characterized Defendant as "thief" and a "robbery" in crimes completely unrelated to the charged conduct. No error on other issues, including inflammatory closing argument statements suggesting need to protect society--Defendant is an "impulsive, dangerous criminal" and he "won't be on the streets to...rob anybody's house...or set another person's house on fire," deeming the argument abandoned for not citing supporting law and finding that these were "specific" deterrence, not general deterrance, and thus appropriate statements.

State v. Crockett, (07-1283). Defendant contends improperly sentenced because state did not produce sufficient evidence of a prior conviction.

N.C. Gen. Stat. § 15A-1340.14(f) provides that "A prior conviction shall be proved by any of the following methods: (1) Stipulation of the parties; (2) An original or copy of the court record of the prior conviction; (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts; (4) Any other method found by the court to be reliable."

Here, Prosecution evidence of Dept. of Criminal Information criminal history and printout from records maintained by the Sherriff's office were sufficient to prove the prior conviction, despite Defendant's claims that he was only convicted of breaking and entering and the judgment only reflected only this charge.

State v. Johnson, (08-55). The facts of these case are too good to summarize:

"The State's evidence tended to show the following: During the early hours of 15 March 2005, Lisa Stewart (“Ms. Stewart”) made two calls to 911 regarding a domestic dispute with her ex-boyfriend,defendant. Ms. Stewart made the first call to 911, stating that defendant had a knife and was pacing on her back porch. Defendant's presence at Ms. Stewart's residence was in violation of a domestic violence protection order which Ms. Stewart had obtained against him. Corporal A.N. Swaim (“Corporal Swaim”) with the Winston-Salem Police Department arrived at Ms. Stewart's apartment shortly thereafter, but defendant was not present when she arrived. Ms. Stewart stated that she did not want to press charges for violation of the domestic violence protective order.
Shortly thereafter, Ms. Stewart again contacted 911 regarding
defendant, and Corporal Swaim returned to Ms. Stewart's apartment. When Corporal Swaim arrived, defendant was pulling on Ms. Stewart's screen door while holding a knife and yelling “please let me in.” Ms. Stewart's door was “rigged” in a way that made it difficult to open. Corporal Swaim repeatedly told defendant to put the knife down and drew her service weapon. Defendant told Officer Swaim, “You're going to have to kill me. I'm not going back to jail[,]” and resumed demanding that Ms. Stewart “[l]et [him] in.” Other officers arrived at the scene.
Corporal Swaim and Officer Banville both sprayed defendant with pepper spray, but defendant merely “wiped it off.” Defendant became more agitated and continued yelling “let me in,” while wielding the knife. Eventually defendant was able to pull the storm door open.
Once inside, defendant pushed Ms. Stewart, slammed the front door shut, and locked it. Officer Swain then heard defendant say,“I'm going to kill you.” The officers unsuccessfully attempted to kick in the front door. Approximately a minute and a half to two minutes after defendant entered Ms. Stewart's apartment, Corporal Swaim observed defendant light curtains on fire with a cigarette lighter. The officers were able to gain entrance with a key from Ms. Stewart who had exited her apartment out the back door shortly after defendant had entered the front door.
Officer Swaim then observed defendant running up the stairs with the knife. By this time the apartment was considerably ablaze, and the officers unsuccessfully tried to stop the fire. Officer Swaim went outside and observed defendant who had come out of an upstairs bedroom window and onto the porch roof. Defendant was pacing back and forth saying, “You're going to have to kill me. I'm not going back to jail.” Defendant then jumped from the porch roof to an adjacent apartment and crawled into the apartment through a window.
As members of the Winston-Salem Police Department Special Enforcement Team were trying to open the door to the room where defendant was barricaded, defendant brandished a knife through an opening in the door and stated “I'll cut you” and “take one of you out”. Eventually defendant told the police he was “coming out[,]” and he was taken into custody." Now that is good policework!

Held. First, the Court denied a challenge to admission of a prior inconsistent statement, where the right of error was waived by failure to object. Second, on the burglary, Defendant requested the following jury instruction:

"The offense of burglary is the breaking and entering with the requisite intent. It is complete when the building is entered or it does not occur. A breaking and an entry without the intent to commit a felony in the building is not converted into burglary by the subsequent commission therein of a felony subsequently conceived."

The Court's submission, that "For you to find the defendant guilty of this offense, first degree burglary, the State must prove six things beyond a reasonable doubt. . . . Sixth, that at the time of the breaking and entering, the defendant intended to commit arson" was sufficient to not mislead the jury.

Finally, no error in submitting to jury that they could consider flight as evidence of guilt, as sufficient evidence of flight existed (in statement "I'm not going back to jail", etc.).

State v. Lofton, (07-1530). Appeal of admission of prior bad acts (under 404(b) and 403) and admission of inflammatory sympathetic facts about victim's mental condition (under 403). No objection at trial, so reviewed under plain error analysis. Plain error is "a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done."

Here, prior acts of violence toward a significant other are admissible under 404(b) to prove motive, opportunity, intent, preparation, and absence of mistake in subsequent attacks upon her. Admissible where sufficiently similar and not too remote. In this case, they were sufficiently similar and less than a year old. Not a problem under 403.

The statements about victim's mental state were not irrelevant; they were within the meaning and intent of the term serious injury in the charge of assault with a deadly weapon causing serious injury.

Tuesday, October 14, 2008

NC Supreme Court Decisions (10/10/08)

The Court issued two criminal decisions:

State v. Haislip, (513PA07), a case on whether to suppress evidence seized from a checkpoint stop was remanded to the trial court for additional findings of facts and conclusions of law, finding an inadequate record upon which to make a decision.

State v. Turnage, (228A08), the Court of Appeals overturned Defendant's burglary conviction where only exterior damage to a home was found and there was no testimony or other evidence placing the Defendant inside the home or that any entry had occurred

First, the Court found adequate evidence that the charged Defendant was the identified perpetrator and reversed that portion of the judgment.

Second, the Court remanded on the element of entry.

To show the the element of entry required for a burglary conviction, “the least entry with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, is sufficient to complete the offense.” The Court remanded to the Court of Appeals on the issue of whether an entry had occurred with the following directions:

"Assuming without deciding, that, as a matter of law, the fact of entry for purposes of burglary may be established by an instrument crossing the plane of the door at the moment the glass broke, the conclusive second sentence does not comport with a correct application of the test for a motion to dismiss based on insufficient proof of entry. Under the long-established test for a motion to dismiss as outlined above, if, as a matter of law, the evidence of broken glass permits a reasonable inference of the fact of entry “in that a body part or instrument may have crossed the plane of the door at the moment the glass broke,” id., then the evidence of entry was sufficient to submit to the jury and to withstand a motion to dismiss as to that element of burglary. Thus, the two statements in the above indented quotation cannot lie down together."

Wednesday, October 8, 2008

NC Court of Appeals Update (Oct. 7, 2008)

Court of Appeals Criminal Decisions from 10/07/2008

State v. Atkins, (07-1134). Background. Defendant charged with second degree rape by engaging in sexual intercourse with one who is "physically helpless." State alleges he climbed in window of 83-year-old neighbor (who knew him) and took her by force while she screamed for help. Holding. Affirmed because, given victim's physical infirmities (severe arthritis and use of walker to get around) and age, she was physically helpless.

"N.C. Gen. Stat. § 14-27.1(3) defines “physically helpless” as “(i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.” N.C. Gen. Stat. § 14-27.1(3) (2007) (emphasis added). The American Heritage Dictionary (2d ed. 1982) defines the word “resist,” in part, as meaning, “[t]o strive or work against; oppose actively.” Thus, a “physically helpless” victim, as used within N.C. Gen. Stat. . 14-27.3(a)(2), is a victim who is “physically unable to [[t]o strive or work against; oppose actively] an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act[.]”

State v. Villatoro, (07-1458). Background. Defendant moved to withdraw his guilty plea, four months later, alleging ineffective assistance of counsel and that his counsel had coerced him into taking the plea. The Court denied his request. Holding. No error as Defendant failed to assert a reason allowing withdrawal. Pleas can be withdrawn for "any fair and just reason."Factors include "[1] whether the defendant has asserted legal innocence, [2] the strength of the State's proffer of evidence, [3] the length of time between entry of the guilty plea and the desire to change it, [4] and whether the accused has had competent counsel at all relevant times. [5] Misunderstanding of the consequences of a guilty plea, [6] hasty entry, [7] confusion, and [8] coercion are also factors for consideration." First, the Court determined he did not assert innocence, because Defendant only stated that he "did not feel he was guilty." Second, the State's proffer of evidence was strong and included a confession. Third, the four month delay here was too long, given the lack of evidence that Defendant was low-functioning or did not understand the plea process. Further, Defense counsel statements to Defendant about aiding and abetting were not incompetent. Finally, there was no evidence of hasty entry or that the Defendant did not understand the terms of the plea.

Additional Cases: Short Notes

State v. Cook, (06-1355-2). 1) Defendant's failure to lay proper foundation and, sui sponte, admonishment of court outside of jury without explanation to jury was not error. 2) Officer's statement that, in his opinion, Defendant was drunk at the time of an accident was inappropriate due to lack of personal knowledge/foundation. Such statement, however, was only harmless error.

State v. Lawrence, (08-320). Striking down sentencing where trial judge applied the wrong grid and misclassified two offenses.

State v. Lee, (08-122). The Court denied Defendant's challenge to prior conviction points for an out-of-state charge. "If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points." Here, Defendant's stipulation to both the "classification and points" included a stipulation that the out-of-state conviction was substantially similar to a NC Class 1 misdemeanor.

State v. Murphy, (08-382). Finding no error where a prosecutor charged Defendant as a habitual felon only related to a minor gun charge and also sought conviction of Defendant on robbery charges at a higher sentencing level (because the three prior felonies cannot be counted in determining sentence levels if charged as habitual felon), even though this resulted in a higher sentence than if he was charged as a habitual felon for all counts.

State v. Narron, (08-129). Upholding as constitutional the crime of driving while intoxicated, finding that the statutory language, "[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration" did not create a presumption that places an impermissible burden on the Defendant. The Court concluded that "the challenged provision does not create an evidentiary or factual presumption, but simply states the standard for prima facie evidence of a defendant's alcohol concentration."

State v. Shaffer, (08-214). Upholding conviction despite inconsistent jury verdicts because "In North Carolina, it is well-established that "'a jury is not required to be consistent and that incongruity alone will not invalidate a verdict.'"

State v. Tanner, (08-251). The Court reduced Defendant's felony possession of stolen goods conviction to a misdemeanor conviction, where the basis for felony possession was that the goods were stolen during a breaking and entering and the jury found the defendant not guilty on the underlying breaking and entering charge.

State v. Walston, (08-15). In a cocaine possession case (where cocaine was seized from the ground during a police chase) the Court found no material prejudice where the trial court denied a continuance for Defendant to obtain the presence of a police officer who conducted the canine search that uncovered the cocaine. The Defendant's proffered reasons, that the officer could explain the route taken to discover the evidence, did not clearly state that the officer's testimony could be used to challenged whether Defendant possessed the dropped drugs.

The Case was remanded for resentencing, however, because the trial court incorrectly believed that GS 90-95h(6), "[s]entences imposed pursuant to this subsection [including trafficking] shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder sentence is imposed pursuant to this subsection shall run consecutively" mandated the court to impose a consecutive sentence. Rather, prior cases establish that consecutive sentences are not mandatory for multiple drug trafficking offenses that are disposed of in a single proceeding.

State v. Welch, (07-1557). Relying on past precedents that eviscerate the meaning of Rule 404(b), the Court allowed in evidence of Defendant's past sales of drugs to show "identity" and "common scheme" in his current charge of selling drugs. This case fits in a long line of NC cases that eviscerate the rule against allowing litigants to admit evidence of prior bad acts to show action in conformity therewith. Originally (and in most jurisdictions) the identity and common scheme distinctions were allowed where, by some inference other than propensity, a prior bad act could show identity. For example, if a Defendant stole a gun and later someone was shot with it, you could show evidence of him stealing a gun because he makes it more likely that he was the shooter (or, if Defendant stole a car to use as a getaway car in a robbery, you could use the evidence of the car theft in the robbery). Here, the Court says that, because the Defendant sold drugs before, it makes it more likely that he is the identity of the drug seller in this case. That is pure propensity and exactly what Rule 404(b) intends to prevent. Nonetheless, NC Courts have opened the door through these gaping exceptions to allow nearly any prior bad act into the Court room. The danger, of course, is that a jury will convict because the Defendant is a criminal and bad actor, not because he committed the actual conduct charged.

State v. Bowman, (07-1518) . Upholding an automobile search, relying on the "collective knowledge" of the police that probable cause existed, even though no evidence was presented that the searching officer had no particularized basis for believing probable cause existed or had been directed by another officer whose possessed such knowledge to conduct the search.

Tuesday, October 7, 2008

NC Court of Appeals Decisions

The Court of Appeals Issued 11 Criminal Decisions Today. Links are below.

Detailed discussion to follow shortly.

Thursday, October 2, 2008

NC Court of Appeals Update (Sept. 16, 2008)

September 16th Criminal Decisions of the Court of Appeals

State v. Abshire
, (07-1185) (Sept. 16, 2008) (Judge Elmore). Background. Defendant, a woman who was convicted of indecent liberties with a minor over 13 years ago, was convicted for failing to update her address with the sex offender registry. She had previously updated it 13 times. Unsafe conditions in the home (she was assaulted by her brother once and her computer was stolen) caused her to move back and forth between her registered residence and her father's home. Based on her 10 day absence from her registered address, she was convicted for failure to register and sentence to 18 months. Holding. Conviction overturned, as the trial judge should have dismissed for insufficient evidence. To prove a change of address case, the state must show: (1) failure to register within 10 days of; (2) a change of address; by (3) a sex offender. Here the Court defined address as "as a place where a registrant resides and where that registrant receives mail or other communication." Because the Defendant continued to receive mail and return to her prior address, there was no change of address and thus no registration of such change was necessary.

State v. Milligan (08-151) (Sept. 16, 2008). Background. A prosecution witness made statements at trial that contradicted a prior statement received from the DA in the form of handwritten notes. The Court refused to allow the Defendant to enter that evidence to impeach the witness or call the DA to testify to the prior statement. The Court did allow the defense to inquire into that prior statement. Holding. Handwritten DA notes of witness statements are discoverable under N.C. Gen. Stat. § 15A-903, but may not be entered as evidence to impeach. Defense counsel may only inquire of the witness if they spoke to the DA and said those things. The Court further upheld the lower court denial of defense right to call the DA to testify to the substance of that statement. The Court offered no justification for this portion of the decision.

Additional Cases of Interest and Short Notes.

In re D.M.
(08-175) (Sept. 16, 2008). Minor was committed to the juvenile facility for violating his supervised release conditions that he follow group home rules. Specifically, he "used profanity, constantly interrupted conversations during group sessions, and was disrespectful to members of the staff." The Court affirmed that violations of requirements of conditional release allow re-commitment based on the prior orders and findings of commitment (from which the conditional release was granted).

State v. Bunch (08-91) (Sept. 16, 2008). Defendant challenges his probation violation conviction where he was originally prosecuted by the same attorney who was appointed his defense counsel at the probation violation hearing. Defendant challenges the failure of the Court to inquire into the conflict of interest. First, the COA ruled the trial court did not have to inquire into conflicts on its own and the failure of defense counsel to raise the issue obviated the need for an evidentiary hearing on the conflict. Second, the COA found no existence of an ineffective assistance of counsel claim as there was no record of how he was adversely affected by the conflict.

State v. Hinchman (07-1549) (Sept. 16, 2008). Held that double jeopardy not implicated by license revocation for drunk driving--even though revocation occurred 140 days after the offense--and subsequent prosecution for DWI.

State v. Murray (07-1555) (Sept. 16, 2008). Held that since the officer on voir dire stated that he had no reason to believe that the Defendant was engaged in crime when he made a Terry stop, evidence seized during that stop must be suppressed as fruit of an illegal seizure (i.e. an investigatory stop made without reasonable suspicion). Only reason offered by the officer in making a traffic stop was to "see what they were doing."

State v. Smith
(08-21) (Sept. 16, 2008). Held that stop made of Defendant's car was legitimate where abnormal registration tag gave rise to reasonable suspicion of crime. During stop, officer smelled marijuana, giving rise to probable cause to conduct a warrantless search the Defendant's car. Discovery of the gun (the item at issue in suppression) was discovered in plain view during that legitimate search and is thus admissible evidence. The Court went on to find that the State adequately proved the Defendant possessed the gun by showing he possessed the car in which it was found and owned other items found in the same area as the gun.

State v. Webb (08-198) (Sept. 16, 2008). Overturned trial court denial of motion to dismiss a possession of stolen goods case where the items were found in the Defendant's home, but another resident's uncontradicted testimony indicated that he, not the Defendant, stole the items and that he concealed them from the Defendant so that he wouldn't get kicked out of the home. The Court found the state had not proved the knowledge requirement necessary to show the Defendant constructively possessed these items. “When the evidence most favorable to the State is sufficient only to raise a suspicion or conjecture that the accused was the perpetrator of the crime charged in the indictment, the motion for judgment . . . of nonsuit should be allowed.”

Wednesday, October 1, 2008

CNN: Ban on execution of child rapists stands

WASHINGTON (CNN) -- The Supreme Court has refused to reconsider its June ruling banning capital punishment for child rapists, rejecting Louisiana officials' argument that a "significant error" led to its conclusion that there is a "national consensus" against executing non-murderers.

Full Story Here.

Man could face death row for scaring woman to death

(Taken from NewsChannel 36, Glenn Counts)

GASTONIA, N.C. -- A man accused of breaking into an elderly woman's home and frightening her to death made his first appearance in court Monday, accused of murder.

In an effort to get away from the police, Larry Whitfield is accused of breaking into the home of Mary Parnell. Parnell, 79, had a heart attack, and prosecutors have blamed Whitfield.

Despite being warned about his right to remain silent, Whitfield spoke before the court Monday.

"I didn’t mean for none of this to happen," Whitfield said. "I'm a good kid, I just made a careless mistake. All I ask is that you give me a decent bond, even house arrest. I ain’t never been in trouble in my life, your honor."

In fact, before Friday, both Whitfield and Quanterrious McCoy could have been considered good kids. They have clean records and graduated from Harding High School with honors. McCoy's mother told the judge about her son's background in the hopes that he would reduce his $175,000 bond.

Read on...

Monday, September 8, 2008

NC Court of Appeals Update (Sept. 2, 2008)

September 2, 2008 Published Criminal Decisions of the North Carolina Court of Appeals

State v. Washington, No. 07-1517 (Sept. 2, 2008) (Judge McCollough). Background. Defendant was arrested and awaited trial for nearly 5 years, while the DA failed to submit and obtain analysis of certain physical evidence. Holding. Conviction overturned for violating the 6th Amendment right to a speedy trial and Art. I, Sec. 18 of the NC Constitution. The Court applied a four part balancing test looking at "(1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of his right to a speedy trial; and (4) prejudice to defendant resulting from the delay." The Court found a presumption of prejudice after 1 year, triggering an examination of factors 2-4. Factor 2 was present as the delays caused by the prosecution could have been avoided by reasonable effort; factor 3 was met because the Defendant formally objected prior to conviction; and factor 4 was met by looking at specific prejudice, such as pretrial incarceration and inability of witnesses to recall testimony.

Full opinion here.

State v. Gabriel, No. 08-59 (Sept. 2, 2008) (Judge Tyson). Background. The Defendant was arrested at a checkpoint car stop for being intoxicated. The Defendant challenged the stop as unconstitutional. Holding. The Court remanded to the trial court for additional findings.

"In order to conform with the Fourth and Fourteenth Amendments, the checkpoint must be “reasonable.” Id. “A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” Id. (citation and quotation omitted). However, the general requirement of individualized suspicion is not necessary under certain situations, including: (1) checkpoints, which screen for driver's license and vehicle registration violations; (2) “sobriety checkpoints[;]” and (3) checkpoints designed to intercept illegal aliens. Id. (citations omitted). Conversely, “[s]tops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime[]” are unconstitutional and cannot be sanctioned by this Court. Id. at 289, 612 S.E.2d at 339. Further, a checkpoint with an unlawful primary purpose will not become constitutional when coupled with a lawful secondary purpose."

The Court remanded for a determination if the checkpoint had a legitimate programmattic purpose or simply attempted to ferret out crime.

Full opinion here.

State v. Wilson, No. 07-1077 (Sept. 2, 2008) (Judge McGee). Background. Defendant challenged Judge's unrecorded bench conference with the foreperson of the jury. After the jury ejected their foreperson, believing him to be partial, the Judge gave a seperate instruction to the foreperson, outside the presence of the other jurors, that "[t]his is an issue that I believe you and the other jurors need to handle in the jury room." It also appears other instructions were given only to the foreperson, that were not recorded. Held. COA finds a violation of the right to a unanimous jury under Article I, Section 24. First, the Court found that no objection was necessary at trial to preserve this claim. Second, failing to give identical instructions to all jurors violates the right to a unanimous jury. Third, errors of this kind are so so fundamental that they cannot be considered harmless. New Trial Ordered.

Full Opinion Here.

Wednesday, September 3, 2008

Court of Appeals Update (Sept. 2, 2008 Decisions)

September 2, 2008 Published Criminal Decisions of the North Carolina Court of Appeals

The Court of appeals issued three criminal decisions, including an important case regarding the right to a speedy a trial. A full review will be out soon. See below for links to full case text.

Man sentenced to 44 years freed

Dan E. Way
Sep 03, 2008 (The Durham Herald-Sun)

Sep. 3--DURHAM -- North Carolina's Court of Appeals has dismissed all charges against a man serving at least 44 years in prison in connection with a Durham home invasion, and one Durham judge plans to examine criminal case backlogs to avoid a repeat.

"There are probably other examples," said Orlando Hudson, Durham's senior resident Superior Court Judge.

"North Carolina is one of those states that has paid lip service to defendants' rights to a speedy trial, but this case is an exception, it looks like, and it might be the start of a new trend. You never know, it may take several other cases for us to see what they mean," he said of the Appeals Court's blistering ruling.

See entire story here.

Monday, September 1, 2008

Law named for slain Laci Peterson, unborn son, yet to be tested

McClatchy Newspapers

Washington--Some gruesome killings could put Laci Peterson's legal legacy to the test.

In 2004, after a high-profile trial, a jury in San Mateo County, Calif., convicted Peterson's husband, Scott, on two counts of murder. The victims were Laci Peterson, eight months pregnant, and her unborn son, Conner.

Congress commemorated the slain California woman by passing the controversial Laci and Conner's Law and creating a new federal crime of killing an unborn child.

Supporters said the measure would fill a law enforcement loophole.

"Police and prosecutors ... have shared the grief of families, but have so often been unable to seek justice for the full offense," President Bush said at the time.

The rhetoric was emphatic on all sides. The bill was a lifesaver, supporters said. It would undermine women's rights, opponents feared.

In calculating the consequences of Laci and Conner's Law, however, the jury is still out.

So far, Bureau of Justice Statistics databases don't show any federal prosecutions under the law, also known as the Unborn Victims of Violence Act. Supporters of the law say they haven't heard of any.

The apparent absence of federal prosecutions undercuts Bush's claim that prosecutors had "so often" been blocked from seeking justice until the law was passed. Moreover, most homicide prosecutions occur in state, rather than federal, courts.

Several recent military homicides could be prosecuted under the federal statute, but they probably won't be.

In North Carolina, Army Sgt. Edgar Patino Lopez is charged with murdering 23-year-old Megan Touma, a pregnant Army specialist with whom he allegedly was having an affair. Touma's body was found in a Fayetteville motel in June.

Six months earlier, officials found the burned body of Marine Lance Cpl. Maria Lauterbach. Lauterbach, too, was pregnant when she was killed, and her body was placed in a shallow grave near North Carolina's Camp Lejeune Marine Corps base. Marine Cpl. Cesar Laurean is in Mexico awaiting extradition in the case.

North Carolina isn't among the 35 states that have fetal homicide laws. There's no indication that either Touma or Laurean will be prosecuted under the federal law.

But counting prosecutions isn't necessarily the only measure of legislative impact.

See the whole article.

Friday, August 29, 2008

Supreme Court Update (Aug. 27, 2008)

August 2008 NC Supreme Court Criminal Decisions

State v. Styles, No. 442A07 (Aug. 27, 2008): Background. Defendant was pulled over for changing lanes without signalling. The officer smelled marijuana, employed a drug sniffing dog. Upon alert by the dog, he searched and seized drugs, for which the Defendant was charged and convicted. The central issue of the appeal is whether the stop was valid under the 4th Amendment and, if not, should the drugs seized be excluded as fruit of an invalid stop. Holding. Traffic stops are not full arrests and do not require probable cause. All that is necessary is the lesser Terry standard for detention of "reasonable suspicion" (despite dicta in Whren suggesting otherwise). Because a statute forbids lane-changes without signaling where it will affect another care and the patrol car was behind the Defendant, there was reasonable suspicion to conduct the stop. Dissent. Justice Brady entered an interesting and in-depth dissent challenging the reasonable suspicion standard utilized by the Court. Full opinion here.

State v. Murrell, No. 484A06 (Aug. 27, 2008): Death penalty decision on a variety of issues, primarily statements by the prosecutor or specific jury instructions. All Defendant's claims were denied. Full opinion here.

NC Court Of Appeals Update (Aug. 19, 2008)

August 19, 2008 Published Criminal Decisions of the Court of Appeals

State v. Spencer, No. COA07-1191 (August 19, 2008): Defendant was convicted of possession of marijuana with intent to sell, possession of paraphernalia, maintaining a dwelling house for drug purposes, and found him an habitual felon. Defendant allegedly made a statement during a police interview, which was later written up by the investigating officers based on their notes, but never acknowledged or signed by the Defendant. The trial court admitted this alleged confession into evidence and the Defendant did not object. Holding: Admission of the confession constituted plain error. This error was not harmless as to the maintaining a dwelling house charge, so a new trial is ordered on that issue. When a statement is reduced to writing by another person, it cannot be submitted as a confession unless (1) there is some signature or other approval by the Defendant or (2) it is a verbatim writing (or recording) with questions and answers. Here, it was just police notes, later written into a statement form, not signed or acknowledged by the Defendant. Full opinion here.

Additional Cases of Interest, Short notes.

State v. Bollinger, No. COA07-1062 (August 19, 2008): No error in case charging carrying a concealed weapon where indictment and jury instruction referred to knives, while facts indicated that Defendant carried brass knuckles. Full opinion here.

State v. Hunt, No. COA08-14 (August 19, 2008): Ordering new trial, finding plain error where jury instruction on lesser included offense of voluntary manslaughter placed the burden on the Defendant. Plain error review allows a new trial where there was no objection at trial for errors that are "so fundamental as to result in a miscarriage of justice or denial of a fair trial." Full opinion here.

State v. McDougald, No. COA06-164-2 (August 19, 2008): On remand from the NC Supreme Court, finding that failure of the lower court to suppress seized drugs was not harmless error and ordering a new trial. Full opinion here.

State v. Rodriguez, No. COA 07-1525 (August 19, 2008): Reducing Defendant's conviction for 1st Degree Kidnapping to 2nd Degree Kidnapping due to failure to allege all elements of 1st Degree Kidnapping in the indictment. Full opinion here.

Criminal Legislative Update, August 2008

For August 2008, the NC General Assembly made the following changes affecting NC Criminal Code:

Stalking Amended (August 3, 2008): the prior stalking law, G.S. 14-277.3, was repealed and replaced by G.S. 14-277.3A. To be guilty of stalking, a defendant must harass a complainant on multiple occasions in a way that creates a fear of serious harm. The new statute changes the injury necessary to the complainant from actual serious emotional distress to conduct that would cause a reasonable person to suffer serious emotional distress -- changing the analysis from factual inquiry into the actual subjective harm suffered by the complainant to an objective inquiry into whether the defendants acts were the type that is likely to cause serious harm. The act did not increase the penalties for stalking (class A1 misdemeanor, with enhancement to felony status for prior offenses or acts committed while under restraining order). Full text of the enactment available here.

Hate Crimes and Secret Societies Statutes: Stricter Penalties and Clarifications (Aug. 8, 2008): The Assembly amended the Secret Societies Act, an act prohibiting certain secret societies (e.g. Ku Klux Klan), whose primary purpose is the violation of law. The act increases the enhancement for committing class 1 or A1 misdemeanor hate crimes--acts committed based on the complainant's race, color, religion, nationality, or country of origin--from a class H to a class I felony (raising the sentence range for a first time offender from 4-6 months to 5-6 months, but also changing to an "active" sentencing category, making actual jailtime more likely). The act also clarifies that intimidation by hanging a noose (while hooded or not) is included in the felony intimidation crimes, forbidden by the Secret Societies Statutes and broadens the prohibition on burning crosses with intent to intimidate to include all public property (rather than just public highways). (Note, the act also prohibits burning crosses on another's property as a property crime; no proof of intent to intimidate is necessary). Full text of the enactment available here.

New Offenses and Procedures, Harsher Penalties for "Gang-Related Crimes" and other miscelaneous provisions (August 15, 2008): First, the Legislation extends forfeiture penalties for gains related to any crime, rather than only felonies and creates special forfeiture rules for property uses to commit gang-related crimes. The statute does create a defense to forfeiture for innocent third-party owners. Second, the statute creates the following new crimes:
  • Discharging a firearm within a building, car, or other enclosure at person outside the enclosure as part of "a pattern of gang activity" as a class E felony;
  • Engaging in a "pattern of street gang activity", defined as being associated with a criminal street gang and participating in its activity or controlling its real property, as a class H felony for underlings and a class F felony for leaders;
  • Soliciting a minor to participate in a criminal street gang, as a class H felony for minors 16 and older and a class F felony for minors under 16;
  • Threatening another to prevent them from assisting another to withdraw membership from a gang or to threaten another in retaliation for withdrawing, as a class H felony.
Third, the statute enhances punishment for class A1 misdemeanors to class I felonies if committed as part of gang activity. Fourth, the statute creates a presumption of no bonded release pending trial if charged with committing crimes related to gang activity while on pre-trial release and having prior gang-related offenses. Finally, the statute expands the enhancement for crimes committed with a firearm to include crimes committed with any deadly weapon. Full text of the enactment available here.

Protect Children from Sexual Predators Act (August 16, 2008): First, the act expands the definition of "sexual activity with a minor" to include the "lascivious exhibition of the genitals or pubic area of any person." Second, the act creates stricter penalties for the following offenses:
  • First degree sexual exploitation of a minor (live performance or creation of pornography with a minor), from class D to class C felony;
  • Second degree sexual exploitation of a minor (distributing or copying child pornography), from class F to class E felony;
  • Third degree sexual exploitation of a minor (possession of child pornography), from class I to class H felony;
  • Soliciting sexual contact with a minor by computer, creating an enhancement to a class G felony if the solicitor "actually appears at the meeting location.
Third, the statute forbids convicted sex offenders from using social networking websites (e.g. facebook, myspace) or obtaining name changes. Full text of the enactment available here.

Sex Offender Registry Changes (Aug 16, 2008): Adds felony child abuse where parent commits or permits an act of prostitution by a juvenile or commits a sexual act on a juvenile to the list of offenses making one a "sex offender." Also requires sex offenders to disclose their email addresses and other internet handles to the registry. Full text of enactment available here.

Thursday, August 28, 2008

DA to decide penalty status of killing case

Raleigh News & Observer

HILLSBOROUGH - Orange-Chatham District Attorney Jim Woodall could announce plans this fall for a fifth capital murder trial in a district that hasn't sent anyone to the death chamber since 1948.

On Wednesday, a judge scheduled a Rule 24 hearing for Kenneth White, 40, accused of killing his pregnant girlfriend, Ebony Robinson, 21, and their unborn child whom family members named Elijah. Woodall is scheduled to announce at the hearing Oct. 28 whether he'll pursue the death penalty for White.

See whole story here.

Innocence Inquiry Commission could help clear man facing life sentence

Independent Weekly

Life on the line

27 AUG 2008 • by Patrick O'Neill

The first test of the state's Innocence Inquiry Commission happens this week in the case of Henry "Hank" Reeves. The former Plymouth police officer has served his full prison sentence after being convicted of taking indecent liberties with his 6-year-old daughter, but because he refused to register as a sex offender, he faces the possibility of a life sentence.

And in a new twist to the case, his daughter, Marquita, now 15, says her grandmother, Barbara Hardy, forced her to testify against her father. (Marquita agreed to be named in this story. )

See whole article here.

Monday, August 25, 2008

Lawyer who worked on a case 19 years without a fee gets his reward

News & Record

Attorney Don Cowan

Attorney Don Cowan

Joseph Rodriguez / News & Record

A Superior Court judge contacted Greensboro lawyer Don Cowan in 1987 asking him to take the appeal of Willie Brown, a Martin County man sentenced to death in 1983 for first-degree murder.

Although Cowan had never handled a capital case, he knew of their grueling and time-consuming nature. Cases bounce up and down among appeals courts. Hopes of lawyers and defendants soar and plunge.

But Cowan accepted, and not only that, he agreed to work without fee — “pro bono.” He’d only get expenses.

Read on...

Supreme Court Update (June 12, 2008 Decisions)

June 2008 NC Supreme Court Decisions

State v. Cook, No. 341A07 (June 12, 2008): Background. The prosecution provided notice and expert report to Defendant the Friday before a Monday trial that it would be using expert testimony to establish that Defendant was intoxicated at the time of a crash. The trial court denied the Defendant's timely motion for a continuance. Holding: The denial of a continuance was an abuse of discretion by the trial court, allowing unfair surprise. A written expert report must be provided within a reasonable time before trial under N.C.G.S. § 15A-903(a)(2). Where, as here, the Prosecutor had the report 5 weeks prior to trial, failure to disclose it until the Friday before trial was not "within a reasonable time before trial." Nonetheless, the court found this as a harmless error, as there was significant other evidence to indicate that the Defendant was intoxicated. Opinion available here.

State v. Moore, No. 460A06 (June 12, 2008): Background. The Defendant pleaded guilty to 1st degree murder and was sentenced to death, after waiving his right to counsel and proceeding pro se. The trial court did not question the Defendant to determine if he understood the consequences of this decision, nor discuss the possible detriment to the Defendant. Holding: New trial ordered, as Court did not conduct adequate colloquy or determine that waiver of right to counsel was knowing and voluntary. N.C.G.S. § 15A-1242 requires a "thorough inquiry" as part of the colloquy to accept a waiver of counsel. The court included a model for this colloquy, including questions regarding the Defendant's mental state, understanding of their right to counsel, and the charge, including its maximum and mandatory minimum sentences. Opinion available here.

State v. Gwynn, No. 158PA07 (June 12, 2008): Background. Defendant convicted of felony-murder, for death caused during armed robbery. Court of Appeals overturned the conviction, ordering a new trial, because the trial court failed to instruct the jury on second degree murder as a lesser included offense. The trial court found that Defendant obtained marijuana from the decedent and, instead of paying him, shot and killed him. Holding. The trial court did not err, as instructions on second degree murder as a lesser included offense are not necessary in a felony-murder case where: (1) charged as felony-murder only; and (2) the underlying felony is not in conflict and all evidence supports felony-murder. The court found that evidence of the underlying felony was not in doubt and that the decedents voluntary act of giving over the marijuana (under the belief he would be paid, rather than shot), did not tend to negate the force element, required for the underlying felony of robbery. Opinion available here.

Additional Cases of Interest, Short Notes

Standley v. Town of Woodfin, No. 531A07 (June 12, 2008): Upholding town ordinance forbidding sex offenders from using local parks.

State v. Gobal, No. 545A07 (June 12, 2008): Per curiam affirmance (double jeopardy).

State v. Person, No. 2A08 (June 12, 2008): Per curiam reversal, based on dissent below (Jury instruction).

State v. Miles, No. 41A08 (June 12, 2008): Per curiam affirmance (Terry stop).