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

By MICHAEL DOYLE
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.