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

Discussion.

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