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.