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).

Tuesday, August 19, 2008

Death Penalty Sought in Chapel Hill Case

NC prosecutors seek execution in NC student death

HILLSBOROUGH, N.C. (AP) — Eve Carson was, some might say, being responsible when she decided to stay home and study as her college roommates went out on a Tuesday night.

She was still working on her computer around 3:30 a.m. as a young man and teenager combed her Chapel Hill neighborhood looking for someone to rob and saw her alone through an open window, prosecutors allege.

Carson was found dead less than two hours later, shot five times — including once in the head with a 12-gauge shotgun — not far from her beloved University of North Carolina at Chapel Hill campus where she served as student body president.

Details emerged in the case Monday as Orange County District Attorney Jim Woodall told a judge he would seek the execution of one suspect, Demario James Atwater, even though jurors in Orange County haven't returned a death sentence in nearly 40 years. It has been 60 years since someone convicted in Orange County was executed.

"This is the toughest decision any prosecutor has to make," Woodall said, adding that he consulted Carson's parents in the matter and felt they supported his decision.

Woodall said the crimes were especially heinous, and Superior Court Judge Thomas H. Lock agreed to hear the case as a capital murder.

Atwater, 22, and Laurence Alvin Lovette, 17, are charged with first-degree murder, kidnapping, armed robbery and other charges in the death of Carson, 22, of Athens, Ga. Lovette cannot face the death penalty because of his age.

Atwater also faces charges of possession of a firearm by a felon and possession of a weapon of mass destruction, in this instance, a shotgun.

"He (Atwater) had been seen with that weapon prior to this crime," Woodall told the judge.

Woodall said prosecutors believe Atwater and Lovette kidnapped Carson from outside her home just before 4 a.m. Her computer showed an e-mail had been checked at 3:35 a.m., he said.

They stole her sport utility vehicle and took her to several ATMs, eventually withdrawing $1,400, he said.

Carson's body was found later that morning in the middle of a residential street near campus. Both suspects were arrested separately a week later after authorities released surveillance photos, including one that showed a man reaching toward an ATM from what appears to be Carson's Toyota Highlander.

Woodall said Carson was shot four times with a .25-caliber handgun, which police believe was used by Lovette, and once by Atwater's shotgun.

Authorities retrieved both weapons, which appeared damages as if someone tried to dismantle them, Woodall said. Ballistics experts were able to get enough evidence from the weapons to pin them on Atwater and Lovette, he said.

Lovette also is charged with first degree murder in the death of Duke University graduate student Abhijit Mahato, who was found dead Jan. 18 in his apartment near the university's campus in Durham, about a 20-minute drive from Chapel Hill. Mahato had been shot once in the forehead.

Stephen Oates, 19, of Durham, also is charged with murder in Mahato's death. Lovette wasn't charged until after his arrest in Carson's death.

Lovette was scheduled to be in court Tuesday in Durham to face charges in Mahato's death.