Thursday, December 31, 2009

2009 Death Penalty Trials: A Year in Review

This year, 8 capital cases were tried in North Carolina state courts. 2 resulted in mistrials, as the juries were unable to return a verdict. Juries convicted of 1st degree murder 6 times; twice they returned death.

Death
Hasson Bacote, Johnston County
Michael Sherrill, Mecklinburg County

Life Without Parole
Myron Britt, Robeson County
Lawrence Flood, Alamance County
John Hester, Bladen County
Anthony McMillan, Cumberland County

Mistrial (hung-jury on guilt/innocence)
Mark Andrews, Cumberland County
Michael Ryan, Gaston County

Wednesday, December 23, 2009

Court of Appeals Update (Dec. 22, 2009)

State v. Evans. Probable cause existed where confidential informant provides information about what kind of car defendants driving, where they would be going, who would be in the car, and where the cocaine would be hidden in one of the passenger's bra.

State v. Sullivan. Defendant's pro se appeal challenging conviction for driving unregistered vehicle and no insurance denied. The court found that they did not unconstitutionally violate the right to travel noting "However, the right to travel is not synonymous with the right to operate a motor vehicle on the highways of this State." Also, not a problem that the trial court didn't put a constitutional oath in the file of the clerk of court (yeah, I don't know either). And the statutes aren't unconstitutionally vague. Finally, no violation of right to counsel where trial court would not let the defendant's son (not a lawyer) represent him at trial.

State v. Williams. Officer approached and asked defendant, in his driveway, if his 30-day tag (which was in rough shape) was expired. Defendant said yes. Officer asked for a license and defendant admitted he didn't have one. Officer asked to search and defendant said, OK. Officer found cocaine and arrested him. No search problem here as the defendant was never seized and consented to everything.

Saturday, December 12, 2009

Supreme Court Update (12/11/2009)

Two new criminal cases out on December 11, 2009.

State v. Kelcie Morton, per curiam reversal (of lower court decision finding unlawful frisk), citing dissenting opinion below. See post about opinion below, here.

State v. Eugene Williams, Appeal of death sentence/1st degree murder verdict from Cumberland County.

1) Court did not err when, after removing an attorney due to disagreements with the defendant, the attorney was subsequently re-appointed. The order did not limit IDS authority to reappoint the attorney, so no error occurred.

2) Denial of pro sel motions not error as defendant was represented--and you can't have it both ways.

3) No error in admitting lay opinions of LEO that "white crystal powder substance" looked like it was from spraying the car at a car wash. According to the court, this was not an opinion. No error in opinion that victims were not shot in the vehicle because there was no pooling of blood, as this was rationally based on his perception...etc.

4) No error in admitting pre-trial remarks for corroboration, even though there was variation between the statements (on the stand, the witness said "Leavy got a call", to the sheriff, she said, "Gillard called Leavy"), the court ruled it was not "contrary to or inconsistent with it." (Likewise, on the stand a witness said the Defendant was going to "fuck him up" and the LEO testified that the witness said the defendant said he was going to "kill and fuck him up." An accidental slip of the tongue, I'm sure.

5) No jurisdictional problems where, after guilt, Defendant assaulted counsel, a mistrial was ruled, new counsel was appointed, and a subsequent sentencing hearing was held, even though a different judge presided over sentencing, a different jury found punishment, and the sentencing judgment was entered out of session.

6) No error in clerk selected 48 jurors from the pool outside the presence of defendant. The processing of seperating the venire into panels is purely administerial and not a "proceeding" that defendant is entitled to be present at.

7) No error in allowing prosecution to put in evidence from 1st phase-- that defendant possessed some of the victim's items--even though not relevant to any aggravating factor, because it was "temporally relevant to the chain of circumstances surrounding defendant's crimes."

8) Court found it proportional. Like they have every time since 2002 (and for all men since 1988).

Wednesday, December 9, 2009

Court of Appeals Update (Dec. 8, 2009)

Reversals and Remands and Other Interesting Cases.

State v. Belk. In B&E case, error to allow officer to testify that person in a surveillance video was the defendant, as that invaded the province of the jury. The officer had no first hand information. He just looked at the video and said, yep, that's him. Because he was in no better position than the jury to make that determination, the court erred in admitting that testimony. New trial.

State v. Clark. Error in not submitting assault as a lesser included of assault with a deadly weapon where the weapon was an automobile and the judge made no finding as a matter of law that a truck was a deadly weapon but rather submitted that question to the jury. "An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." Because the judge submitted that question to the jury, as a matter of law the judge found that the jury could have found it was not a deadly weapon. As such, the lesser included offense should have been included.

Also ordered trial court to hold a hearing on speedy trial issue.

New trial.

State v. Davison. Defendant convicted of attempted 1d sex offense and indecent liberties. Ordered to do life-time Satellite based monitoring (SBM). Trial court erred in finding this to be an "Aggravated Offense". In determining what counts as aggravated, the court must only consider the elements of the offense. An aggravated offense is one whose elements include an act of penetration with force or an act of penetration with a victim under 12 years old. Because he was convicted of attempt, rather than a completed act, this is not an aggravated offense. Vacated and remanded.

State v. Henderson. Despite stipulation to record level, state still had the burden to prove out-of-state convictions were "substantially similar" to NC offenses for record level points. Cannot stipulate to the question of law as to substantial similarity. New sentencing hearing ordered.


State v. Whitaker
. Held that crime of possession of firearm by felon was constitutional (no facial or as applied violation of 2nd Amendment, despite DC v. Heller, no as applied violation as this case is different than Britt and no ex post facto problem).

But, only one conviction possible where defendant simultaneously possesses multiple firearm.

Dissent by Elmore on ex post facto issue and urging that only felony offenses committed after 2004 could serve as predicate felony for firearm by felon conviction (when the possession of firearms prohibition was expanded to include possession in the home and thus became a punitive measure).


Other cases.

State v. Shockley
. Defendant given 4 breathalyzers. He blew .16 on the 1st, .15 on the 3rd. The 2nd and 4th he had inadequate breath. These breathalyzer results counted as "consecutively administered tests" as required by law as required under Gen. Stat. 20-139.1(b3).

State v. Williams
. No error in multiple convictions for robbery, sex assault, other assaults and kidnapping.

1) Assault with SBI: Serious bodily injury present for Assault causing SBI where scar over left eye caused permanent disfigurement

2) Assault by Strangulation: Variance between indictment (strangled by placing hands on throat) and testimony (strangled by putting foot against throat) was not fatal. Also, strangling by putting foot on throat counts; state does not have to prove victim had a hard time breathing.

3) Under Gen. Stat. 14-32.4(b) ("unless the conduct is covered under some other provision providing greater punishment..." assault by strangulation is a Class H felony) cannot be sentenced for the same assault for both Assault with SBI (class F) and Assault by Strangulation (Class H).

4) No DJ or other problem with conviction for Assault with SBI and 1d kidnapping--elevated due to serious injury, as serious injury and serious bodily injury are different elements (SBI requires more proof than SI).

“Serious bodily injury” is injury which “creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.”

Serious injury has been defined as an injury which is serious, but falls short of death. State v. Jones, 258 N.C. 89, 91 (1962)

5) Insufficient evidence for a different county of Assault with SBI, there was no evidence of substantial risk of death or extreme pain.

6) Convictions for two counts of first-degree sex offense permissive in situation where defendant placed his fingers inside the vagina and rectum at the same time (different element in each count is the orifice).

State v. Veazey. License checkpoint valid as the programmatic purpose (motor vehicle law violations checks) was legitimate and the checkpoint was reasonable (minimal intrusion, etc.)

State v. Small. Convictions for assault and firing into occupied property

First, no discovery violation in failure of state to give up witness statement to prosecutor as it did not contain any significantly new or different information (see Gen. Stat. 15A-903(a)(1)).

The crime of "Discharging barreled weapon or firearm into occupied property," a Class E felony, has the following elements (Gen. Stat. 14-34.1)
  1. Willfully or wantonly
  2. Discharging any firearm or barreled weapon capable of discharging...missiles at 600 feet per second
  3. Into any building, structure, etc. that is occupied.
1) Where defendant shot a person outside home, bullets entered the home, and defendant knew other people were in the home, proper to use transferred intent to convict of crime of shooting into occupied dwelling.

2) The requirement of "600 feet per second" does not apply to firearms. The statute is properly read as "firearms" or "barrel weapon...600 feet per second", not "firearms or barreled weapon" that can send it "600 feet per second."

"Thus, the most logical interpretation is that the General Assembly was primarily concerned with the use of traditional firearms to shoot into occupied property but further recognized the potential for individuals to use non-traditional barreled weapons for this same purpose. Therefore, the legislature included the traditional firearm in the statute, but further included other barreled weapons that have a propensity to penetrate a structure and injure occupants."

State v. Stitt. Convicted of 1st degree murder, 2nd degree murder (different victim) and robbery. Defendant had no right of privacy in suppression context to cell phone records of phones stolen from the victim that were he later used to make calls on.

Wednesday, November 18, 2009

Court of Appeals Update (November 17, 2009)

Not much to get excited about here...

State v. Price. In burglary case, during jury deliberations, the court received a hand-written note stating that the juror couldn't convict on circumstantial evidence alone. Judge gave an instruction that the law does not require direct proof and gave a reasonable doubt instruction from State v. Connor.

Later, the court received a second note that, "I cannot apply the law as explained by the judge's case. I request to be removed from the jury." Judge brought the jury out, said he couldn't remove any jurors and gave an Allen charge.

Held: No error in the trial courts to perform investigation into juror competency and no error in giving the Allen charge.

State v. Remley. No abuse of discretion in trial court ordering a recess as a remedy for the state's failure to provide discovery (the defendant's statement), rather than excluding the statement. Trial court did err in sentencing defnednat to 150 days for two Class 1, Level 2 misdemeanors (cannot sentence more than 2x the consecutive sentence, even if defendant is convicted of more than 2 misdemeanors).

State v. Washburn. No invasion of any legitimate expectation of privacy when a dog sniffs the common area of the storage facility, where officers present with consent of owner of the facility. Search proper where, based on the alert and an informants info, police got a search warrant and seized drugs from defendant's storage unit.

State v. Williams. No error in trial courts failure to intervene when DA closing.

No error in allowing eye-witness to testify that she saw defendant, despite the fact that she initially identified him in a "show-up" procedure (rather than a line-up or a photo array). The court relied on the fact that the police didn't set up the show-up; rather, the victim just came to the jail and happened to see him and said, "that's him." Because there was no state action in setting up the show-up, there was no taint.

No due process violation in photo arrays provided to other eye-witnesses, as they were not unduly suggestive.

No error in failure to include jury instruction on lessers.

Thursday, November 5, 2009

Court of Appeals Update (November 4, 2009)

Reversals and Interesting Cases.

State v. Mobley. Melendez-Diaz. No confrontation problem in lab analyst's testimony about other, non-testifying lab analysts reports, where these were part of her own expert opinion comparing the data and about the accuracy of the underlying reports.

Ed. Note. The court went on to not that these were offered as the basis for the opinion, not for proof of the matter asserted. An interesting side not, here that under Rule 705, experts are not supposed to be allowed to disclose the underlying facts needed to come to their conclusion on direct (unless it would be otherwise admissible). Rule 705 creates an exception on cross, allowing for admission of underlying data, even if it is not otherwise admissible. In that situation, it comes in not for truth, but for the jury to evaluate the experts opinion. In practice, however, courts across the state routinely allow experts on direct to discuss the basis for their opinion. It's interesting that this practice that circumvents rule 705 is now being used to circumvent Melendez-Diaz. The court's conclusion that the expert can rely on other reports (reasonably relied on in the field) and provide an opinion doesn't have Melendez-Diaz problems is sound. It seems less sound, however, when the expert is allowed to discuss and disclose those underlying reports--with no cross examination of their drafters--directly to the jury.

State v. Mello. City drug loitering ordinance unconstitutionally vague because criminalizes any conduct with "manifests" purpose to conduct drug activity (compare with Gen. Stat. 14-204.1 that requires specific intent to engage in prostitution)

Other less interesting cases.

State v. Allen. No miranda violation when officer interviewed defendant in hospital unwarned, as officers did not restrain defendant--any restraint was part of his treatment. Later, at stationhouse, defendant requested a lawyer. The officer told them he couldn't find the lawyer. Later, an officer told him he was being booked for 2nd degree murder. When the defendant stated he wanted to talk "right now," he re-initiated interaction with police and no miranda problem in officer proceeding with interrogation. Under Mirdanda, once a defendant asserts his right to counsel, police cannot question him unless the defendant reinitiates such contact.

State v. Coleman. Strangely, to prove the crime of having sex with a minor by the minor's custodian--defined as a parent, someone in a parent-like role, or someone employed by an instution or person with custody of the minor-- (Gen. Stat. 14-27.7(a)), the state does not have to prove the defendant knew or should have known that the victim was in the defendant's custody or in the custody of the defendant's employer.

State v. Dunn. Bond forfeiture case.

State v. Gardner. In Satelite-based monitoring case, trial court's order contained conflicting provisions. Remanded for correction.

State v. Mewborn. Police pulled up next to a two men walking down the street and told the occupants to wait a minute, because they needed to speak to them. Defendant ran away, threw a gun, was caught, then threw away cocaine. Convicted of possession of firearm by felon and possession of cocaine.

The Court found, first, that the officers had no reasonable suspicion to stop the two men. BUT, that didn't matter, because the man didn't stop and, once he started to run away, this action gave the officers reasonable suspicion to stop him (and, thus, everything that happened afterwards was legal).

[I Guess the lesson is, if you're walking down the streets with guns and drugs, and a cop says to "wait a minute," you have to walk, not run, from the area. Of course, they'll probably stop and search you and the court change it's mind and find that the officers had reasonable suspicion...remember the only reliable rule in criminal procedure cases is, with rare exception, the house always wins]

State v. Stover. Probable cause and exigent circumstances existed to search a home where, during a vehicle stop, a passenger told them she had just bought marijuana from the house. When the cops knocked on the door, they smelled marijuana. They then heard a noise that made them think someone was trying to escape. They had: (1) probable cause to believe the crime of possessing marijuana was going on inside and (2) exigent circumstances to know that the evidence of that crime was being destroyed (by the smoking) and that the defendant was trying to flee. It is unclear if the destruction of evidence alone was enough, but at least in combination with a preventing escape, it was here.

If the destruction of evidence alone is enough (I don't see why it wouldn't be), it's important to note that the smell of marijuana emanating from a house gives police the right to burst in and search. I sure hope those officers are getting quality olfactory training...

State v. Tellez. Sufficient evidence of malice in DWI/2nd degree murder case where defendant had previously convictions for DWI, DWLR (not sure why DWLR is relevant...), was drinking while driving, and fled the scene after the accident.

State v. Williams. Defendant properly given 1 record level point for all elements of prior offense being present in current conviction where charged with delivery of cocaine and had a prior of delivery of marijuana. Court found all elements present, even though they were different drugs (and different schedule levels).

State v. Wright. No 404(b) problem in testimony about defendant's failure to properly disclose campaign expenditures and obstruction of justice charges. This was admissible as evidence to explain how some of the charges in this case were initiated, as they arose from audits performed on defendant's accounts as part of those prior charges.

Wednesday, October 21, 2009

Court of Appeals Update (10/20/2009)

Reversals and other interesting issues.

State v. Galindo. Melendez-Diaz. Applying the new high court's decision in Melendez-Diaz (2009), the court found that a lab supervisor's testimony, based solely on a hearsay lab report of another analyst, violated the confrontation clause.

Less interesting cases.

State v. Carrouthers. Trial court suppressed evidence. Case remanded for findings as to whether the officer's handcuffing of the defendant constituted arrest or simply an investigative stop. (It would be investigative if handcuffing was the least intrusive means reasonably necessary to carry out the stop, even if the defendant didn't feel free to leave once handcuffed.)

State v. Magnino. No constitutional separation of powers issue in Gen. Stat. 20-38.6(f) provision that district court to only rule preliminarily on suppression issues in implied consent cases (by driving on the roads, you give your implied consent to be tested if officers believe you are DWI), subject to appeal to Superior Court by the state.

State v. Rackley. No right of the appeal for the state to COA on Superior Court affirmance of district court suppression in an implied consent case.

Saturday, October 10, 2009

Supreme Court Update (10/9/2009)

Cases from NC Supreme Court released 10/9/2009.

State v. Bobby E. Bowden. Digged. See post on Bowden here.

State v. Roger Earl Coley. Per curiam aff'd. See post on Coley here.

State v. Lloyd Green, Jr. Per curiam aff'd. See post on Green here.

Wednesday, October 7, 2009

Court of Appeals Update (Oct. 6, 2009)

Reversals and other interesting issues.

State v. Asia Niangel Springs. Judicial comment. Judges stated during a witness testimony that "Let's move on to another area. He has no involvement with these charges." Appellant argued that this tended to discredit the defense theory that the witness was involved with the charges. The court found that this statement was an impermissible opinion. New Trial. Double Jeopardy. DJ does not prevent conviction for PWISD marijuana and felony possession of marijuana (more than 1.5 oz).

State v. Stephen Jack Stines. Satelite based monitoring. Prehearing notice required of basis of determination that defendant qualifies for SBM required by due process.

Other cases.

State v. Joshua Earl Anderson. In murder case, no error in admitting a demonstration of shaken baby syndrome.

In closing, prosecutor pointed out that, in their opening, the defense said they were going to put on evidence of mental retardation, then didn't, saying, "“[T]here is nothing to preclude the defense from putting on evidence, evidence like you heard in jury selection, you were going to hear that he was mentally retarded. See that’s about broken promises. Broken promises from the defense.”" While the court stated "We do not condone in any respect the State’s use of the term “broken promises” in its closing argument," it nonetheless condoned it by finding such error harmless and noted that "When defendant forecasts evidence in the opening statement, the State is permitted to comment upon the lack of evidence supporting such a forecast in closing argument."

No error in submitting (non-capital) aggravating factors and guilt/innocence on same verdict sheet.

State v. Shawn Dupree Corpening. Officer walked up to a car that stopped 100 feet before a checkpoint. Smelled marijuana and conducted a warrantless search. Court found that the plain smell gave probable cause, allowing the warrantless search of the car. Defendant argued that the checkpoint was illegal, but the court ruled that this was irrelevant as the defendant stopped of his own free will before the checkpoint.

State v. Ricky Sylvester Graham. 404(b) evidence of 1995 assault by defendant upon the victim, his estranged wife, was relevant in a prosecution for a 1st degree murder of the victim in 1996. Easy 404(b) decision, as it was the same victim and state's theory was that that victim was killed to prevent testimony in the 1995 case. Properly admitted to show motive, malice, hatred (?), ill-will, and intent.

No error in allowing state to present evidence, despite it's failure to preserve other evidence. Defendant's car was impounded in 1996, then subsequently lost. The state did preserve some soil samples and presented them at trial. As no bad faith was shown, there is no problem with the state presenting this evidence, despite it's losing the more complete body of evidence.

No error in failing to intervene ex mero motu to prosecutor's closing argument that: "An innocent man, I contend . . . would cooperate with the police." and "Remember please, that the defendant chose to put on evidence. If there was really a question about those phone calls, they could have called whoever’s name was on these phone records, but they didn’t. And that tells you something" as these were not direct references to defendant's failure to testify. Rather, these were comments on defendant's failure to produce evidence or refute evidence presented by the state. (is that the defenses burden, now?)

No prejudicial error caused by pre-indictment delay of 1st degree murder indictment.

State v. Joseph Dwayne Morrow. Court ruled that (1) SBM may be ordered even if the DOC assessed the defendant as a moderate risk if there is other evidence to support the conclusion that the highest level is needed; (2) the trial court erred in imposing an indefinite period of time for the SBM (7 to 10 years) and must impose a definite time; and (3) SBM does not violate the ex post facto clause (citing State v. Bare)

Judge Elmore dissented on issue 3.

Sunday, September 20, 2009

Court of Appeals Update (Sept. 15, 2009)

Reversals and other cases of interest

State v. Lamont Derrell Carter. Search incident to arrest in automobile. Defendant arrested in vehicle for expired registration. Handcuffed and taken to curb, then car was searched. Officer found pieces of ripped paper, that, when put back together were incriminating. Held: Search violated Arizona v. Gant (2009) (first application of Gant). Under prior law (Belton), officer's could search the entire interior of a car incident to arrest when an occupant was arrested in a car. Gant changed this and limited Belton only to situations where the defendant is still in his car. Once the occupant is removed from the vehicle, the police cannot go back and perform a search incident to arrest. Because the search occurred while the defendant was cuffed and on the curb, it violated Gant. (Note: if police have probable cause to believe there is evidence of crime within a car, however, they may still search under automobile exception to the warrant requirement, which did not exist here). No plain view exception here, either, because the torn up pieces of paper were not immediate evidence of crime.

State v. Joseph Kevin Causby. Satellite-based monitoring. Trial court erred in ordering defendant be enrolled in satellite-based monitoring for prior sex offense, as state's evidence only showed defendant to be a "moderate" risk, not the highest possible level as required by statute.

State v. Charles Jerome Faulk. Statutory Rape- More than 4. Upheld statutory rape conviction. Under Gen. Stat. 14-27.7A, the "more than four" years provision is calculated by comparison of birth dates, not whole ages. Defendant, who was 19, was properly convicted of statutory rape of a 15 year old, where his birth date was 6/9/1987 and hers was 11/6/1991, making him exactly 4 years, 4 months, and 28 days older than her (i.e. more than 4 years older).

State v. Shannon Don Horton. Expert testimony on credibility. Trial court erred in (1) admitting clinical social worker testimony that victims are more credible when they provide specific details; (2) admitting clinical social worker testimony that child had more likely than not been abused, despite the absence of any physical evidence. No error in allowing expert testimony about grooming behavior, based on statements made to the social worker by the child. New trial.

State v. Mickey Vonrice Rollins. Plea with Appeal Conditions. Defendant made an alford plea to 1st degree murder, reserving right to appeal his denial of motions to suppress his statements (as marital communications and involuntary).

On his first appeal, the COA found that the court erred in suppressing his statements to his wife, as they were marital communications and to corrections officers as they were involuntary. The COA did not address two other claims on voluntariness.

The Supreme Court reversed on the marital communications issue (saying that there was no expectation of privacy when an inmate talks to his wife from jail) and remanded for consideration of the remaining issues. Holding on the marital communications stand. See blog post on this, here.

First, an order finally denying a motion to suppress may be reviewed upon appeal, even of a guilty plea (note: motions filed, but never ruled upon, are not). Second, when the appeal of a suppression issue is made a part of the plea agreement, defendant is entitled to the benefit of his bargain and is entitled to withdraw his plea. New trial.


Other Cases

State v. Robert Gregory Boyd. Defendant forfeited right to counsel by willful ostruction and refusal to cooperate with counsel. As such, no error in failing to conduct inquiry required by Gen. Stat. 15A-1242 to proceed pro se. Forfeiture, unlike waiver, does not need to be knowing and voluntary and does not require the inquiry.

State v. Lance Dylan Flint. Defendant challenged conviction (convicted of 68 felonies) based on lack of factual basis. Court found a lack of a basis on some. Judge Jackson dissented, on basis that defendant did not file a proper writ of certiorari.

Wednesday, September 2, 2009

Court of Appeals Update, Sept. 1, 2009

State v. Jihad Melvin, new trial ordered where judge submitted to the jury both 1st degree murder and accessory after the fact (and jury convicted on both). Plain error because the judge should have instructed on these as alternative verdicts. New trial.

State v. Mahamed Mohamud, plain error in instructing jury that "khat" was a Sch. I substance. Cathinone is a Sch. I substance, not "khat." New trial.

State v. Edward Wagoner, no error in ordering defendant to participate (12 years after his plea) in satelite-based monitoring. No violation of ex post factor rules, double jeopardy, or the defendant's plea bargain. Elmore dissents.

Monday, August 31, 2009

Supreme Court Update (August 28, 2009)

State v. Lopez. Prosecutor's argument to jury on effect of jury finding an aggravating factor was inaccurate and misleading. After a DWI accident, Defendant was charged with 2nd degree murder. The jury was given a verdict sheet with options for 2nd degree murder, involuntary manslaughter, and misdemeanor death by vehicle. The jury found the defendant guilty of involuntary manslaughter and other lesser charges.

During sentencing, the State asked the jury to find the agravating factor that defendant "knowingly created a great risk of death." The prosecutor wrote up the sentencing grid on the chalkboard, with the presumptive range and the aggravated range. The Court found this was error because it was misleading (because those were the presumptive minimums, not the presumptive sentence) and the defendant's sentencing range could not have been determined at that time. Further, it informed the jury about some of his charges merging and his lightened sentence for this reason. The court abused its discretion in failing to grant defendant's objection. However, such error was harmless.

While finding it misleading, the Court did find that the calculation of aggravating factors was relevant to the jury's understanding of the presence of an aggravating factors.

Justice Brady, along with Justice Timmons-Goodson, dissented, saying that calculation of aggravating factors was not relevant.

State v. Wilson. Affirming decision of Court of Appeals that judge's instructions to a single juror violated defendant's right ot a unanimous jury verdict. New trial ordered.

Justice Brady, along with Justice Newby, dissented.

Britt v. State. Finding that the 2004 amendment making it unlawful for any felon to purchase, own, possess, or control any firearm, without an in-the-home exception, is unconstitutional as applied to Plaintiff. Plaintiff was convicted of felony drug possession in 1979.

The Court ruled that this amendment violated Article I, Section 30 of the NC Constitution that: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." This provision requires regulations of firearms to be "reasonable" and bear relation to the "preservation of public peace and safety."

The Court found that, because his prior conviction did not involve violence, that he had lawfully possessed firearms from 1987 to 2004, and that he surrendered his arms after consulting with the Sheriff in 2004, he is not in the class of citizens who pose a threat to public safety.

"In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety."

Justice Parker dissents.

State v. Locklear. Death case. New sentencing ordered in capital murder case.

Guilt Issues. No error under 404(b) for admitting evidence of defendant's prior murder in a murder prosecution, where both victims were female, an argument arose in both instances during sexual intercourse, that both were beaten with hands and a two-by-four, in both instances efforts were made to dispose the body, and the murders were 3 1/2 years apart. 404(b) evidence that defendant was a felon was also admissible as motive, where, under state's theory, the motive for killing was to prevent reporting a rape and defendant's belief that police would not believe him because of his status as a felon.

Court erred in admitting opinions of non-testifying pathologist and dentist under the Sixth Amendment. Found such admission as harmless. Other issues as well.

Sentencing. Ordered new sentencing hearing, because judge refused to instruct the jury that finding the defendant mentally retarded would result in a sentence of life without parole.

Martin dissents.

State v. Wilkerson. Death case. No error found.

State v. Jacobs & McMillan. Vacated and remanded for harmless error analysis.

Thursday, August 27, 2009

Unbelieveable Quote from Forsyth County District Attorney

Tom Keith, the elected DA for Forsyth County was quoted in YES Weekly as saying:

“If you’re African American, you’re six, seven or eight times more likely to have a violent history,” Keith said. “I didn’t go out there and put a gun in your hand and say, ‘You commit eight crimes, and I’m a white man, I’ll commit one.’ That’s just instincts, that’s just how it is.”

Instincts? Wow.

Wednesday, August 19, 2009

Court of Appeals Update (August 18, 2009)

Decisions from 8/18/2009

Reversals.

State v. Christopher Giddens, in child sex case, trial court committed plain error in allowing DSS worker to testify that her investigation had substantiated Defendant as the perpetrator of sex abuse. This constituted an opinion on the two children witnesses credibility, which was impermissible even though the worker was not giving an expert opinion. The implication was that DSS had conducted a thorough review and come to the conclusion that the children were telling the truth.

Judge Bryant dissented.

State v. Curtis Jackson, during a routine traffic stop, an officer checked the defendant's registration and license, found them valid and found no warrants on the defendant. Nonetheless, the officer, before returning the documents, asked for consent to search, did so, and found drugs. HELD: that the search was the fruit of an illegal seizure. Once the warrant and license came up good, the stop was over and asking about drugs, without returning the documents, constituted a seizure that went beyond the reasonable scope of the traffic stop.

State v. Jimmy Ward, court erred by (1) allowing state SBI lab analyst to identify pills as controlled substances by pharmaceutical markings, rather than conducting chemical analysis; (2) allowing 404(b) prior bad act evidence of acts that were previously charged and dismissed.

State v. James Willis, trial court erred when it amended defendant's sentence for larceny of a dog, without providing notice, from "do not possess more than 1 dog" to "do not possess more than one animal."Vacated and remanded for re-entry of the original condition.

Other Cases.

State v. Henry Luther Brown, III, probable cause existed to arrest for murder on basis of anonymous tipster who revealed his identity before arrest where details of the statement were corroborated (the location of the motel, that a male victim was shot numerous times, that money was taken, and that two males and one female were involved) by forensic evidence and statements of unrelated witnesses.

State v. James Cole & Kawamie Cole, (1) no restraint to support kidnapping convictionwhere such restraint was an inherent part of the armed robbery for which defendant was also convicted; (2) kidnapping conviction stands (as to different victim) even though acquitted as to the robbery, as purpose for restraint was robbery even if it never actually occurred, and (3) verdicts of not guilty of possession of firearm by felon and guilty of assault with a deadly weapon not legally inconsistent.

State v. John Savage, defendant challenged probation violation on jurisdictional grounds. To have juridiction for probation violation, “the probationer must have committed a violation during his probation, the State must file a motion indicating its intent to conduct a revocation hearing, and the State must have made a reasonable effort to notify the probationer and conduct the
hearing sooner." Remanded for clearer findings.

State v. Misty Witherspoon, no error in allowing prosecution to use a mannequin and couch to re-create the crime scene in a murder trial. Court found this to be demonstrative evidence relative to premediation and deliberation.

Sunday, August 16, 2009

Court of Appeals Criminal Decisions (August 4, 2009)

Reversals and Resentencings

State v. Davis. Court found defendant could not be convicted of both involuntary manslaughter and felony death by vehicle arising from the same death, nor could he be convicted of both felony death by vehicle and DWI arising from the same incident.

First, under Double Jeopardy, you cannot be convicted twice for the "same offense"--defined as two offenses that do not EACH contain an additional element not found in the other offense.

Involuntary manslaughter elements are: (1) accidential killing, caused by (2a) unlawful act not amounting to a felony and not ordinarily dangerous or (2b) culpable negligence.

Felony Death by vehicle elements are: (1) accidental killing, while (2) driving impaired.

The court ruled that these were not the same offenses because manslaughter requires proof of culpable negligence which does not have to be while driving and felony death by vehicle requires proof of driving while impaired. (ed. note This is silly though, given that driving while impaired will always be culpable negligence and conviction for felony death by vehicle will ALWAYS result in conviction for manslaught...)

However, under the Blockbuster Test (which allows multiple punishment for two offenses, even if they are included within one another, if they are tried at the same time and the legislature so intended), the NCGA did not intend for persons to be sentenced for both these charges. As such, while you can be convicted for both, you cannot be sentenced for both.

Second, under double jeapardy, driving while intoxicated is a lesser included offense of felony death by vehicle. As such, Defendant could not be convicted of both. If the lower court vacates on voluntary manslaughter and sentences for felony death by vehicle, then it must arrest judgment on DWI.

Remanded for resentencing.

Other Cases

State v. Bohler. Defendant challenges his sentencing (based on 12 points), saying that the court counted charges for out-of-state convictions that had not been properly been shown to be "substantially similar" to NC crimes. Trial court erred in assessing 12 points; should have assessed 10, but that makes no difference. Still level IV, so sentence sticks.

State v. Hargrave. No error in allowing (in a PWISD Cocaine case) officers to offer lay opinion that the way the cocaine was packaged and the amount of money on defendant was indicative of a drug sale. Here, such testimony was relevant, based on personal knowledge, and helpful to the jury--thus an appropriate lay opinion.

No error allowing a lab technician testify as an expert that the substance seized was cocaine, despite her lack of higher degrees.

No error in permitting prior sales, as they were similar (involved same parties, at same place, and same type of drug) or admitted subsequent DWLR in proving knowledge or revocation on prior charge of DWLR (ed. note: how DWLR later shows you knew your license was revoked when you drove before is beyond me, but frankly, NC 404(b) law is beyond me...)

No 8th Amendment excessive punishment violation (10 years for conviction of selling cocaine, DWLR, PWISD cocaine, giving a false name to an officer, and habitual felon...)

State v. Hunt
. Defendant tried in 1st degree murder case. Facts are that Defendant fired into a car and killed an enemy. Issue at trial was whether this was in self-defense or a lesser homicide.

State proceeded on p&d theory as well as felony murder (underlying felony of firing into an occupied car). 1st, no error to allow state to proceed on felony murder theory, despite defense claims that it undermined his argument for voluntary manslaughter or self-defense.

Decision of jury was not "out of term," as judges announcement that it was recessing, without objection of the defendant, created substantial compliance with 15-167 (statute on extending jury term.)

No error in polling the jury on all offenses at once, rather than seperately on each offense.

No error in failing to strike the jury panel after a prospective juror stated that there was "too much gunplay" in Durham.

No error in using short-form indictment for first degree murder.

State v. Keller. Court erred in accepting plea and sentencing Defendant for both 2nd degree murder and accessory after the fact to 1st degree murder, as the two offenses are mutually exclusive, and their was no factual basis for plea to kidnapping, as evidence only suggested that Defendant moved a body, not a living person, which is not kidnapping.

Guilty plea vacated and remanded for trial.

State v. Lowry. Sufficient evidence of 1st degree murder, where evidence of motive, opportunity, and possession of items belonging to the victim shortly after the murder.

State v. Potter. First, Defendant challenges conviction for both robbery with a dangerous weapon and misdemeanor assault on a female. This argument was not properly before the court, so no ruling.

Second, Defendant argues IAC for failure to object to submission of misdemeanor assualt to the jury. Court refused to address and said this was more proper subject of an MAR.

State v. Rainey. No error in admitting taped calls Defendant made from jail (defendant argued it was unduly prejudicial, hearsay, and violated the confrontation clause.) Photo array was not overly suggestive where other persons in the photos were not close in age to the Defendant and he was the only one wearing a red shirt and that both witnesses were shown the same line-up with the Defendant's picture in the same order.

Defendant challenges discovery violation state's failure to provide his statement "I hope this spic is dead," to which a detective testified to on direct. The officer's notes did say, "they hated Mexicans." This was adequate notice of the statement.

Defendant challenges admission of his prior failure to appear in 2006 on this case under 403. Flight is admissible of evidence of guilty. No error.

Defendant challenged admission of 404(b) evidence of a prior drunken fight he got in at a mobile home. This was similar to the current charge in a "particular fighting style"--fighting alongside another person, showing defendant's method of operation. Further, the same individuals were present and drugs and alcohol were involved in both fights. (Here, during a drunken party, Defendant and some others beat up and robbed another man in a preplanned robbery).

State v. Rawlinson. Superior court had authority to try misdemanor where it was based on the same transaction or occurance as a felony.

Sufficient evidence of non-consent for breaking and entering where defendant entered a public video store, but then entered a back office. Implied consent exists to enter the store, but not the office, as it was not held out to the public in the same way as the store.

State v. Watterson. Defendant challenges conviction for possession of weapons of mass destruction, arguing that the jury was not instructed on essential element: that Defendant knew that a saw-off shotgun was unlawful. However, knowing possession is a violation of the law, even if the Defendant did not know they were unlawful to possess.

Rob Johnson puts name in for Spencer seat

Alamance County DA, Rob Johnson, threw his name in with Gov. Purdue for appointment for Spencer's superior court judgeship. He will compete with district court judges Wayne Abernathy and Brad Allen (son of superior court judge J.B. Allen).

Friday, August 7, 2009

NC Senate Passes Racial Justice Act!

NC on the way to becoming second state to enact such protective legislation. Governor Purdue is expected to sign the law.

Read more here.

Wednesday, August 5, 2009

Racial Justice Act Before Senate

NC Racial Justice Act, an act to allow capitally charged or convicted persons to challenge the charging decisions or jury proceedings, will be heard before the full Senate today.

The act provides that where defendants can prove that the process was infected with racial bias, their death sentence would be commuted to life without parole.

Friday, July 31, 2009

July 21, 2009 Court of Appeals Decisions

Reversals.

State v. Kilby. Defendant imposition (under law that came out after his conviction) of satellite-based monitoring for 5-10 years. To impose SBM, the Court must find that Defendant was convicted of an enumerated offense and that the Defendant requires the "highest possible level of supervision and monitoring" (or find that he is guilty of certain prior offenses that mandate SBM for life). In making the determination, they must look at the DOC risk assessment.

Here, DOC risk assessment found Defendant posed a "moderate risk." There was nothing else in the record, so the Court's finding that he required the "highest possible level of supervision" is unsupported in the record.

As such, the case is not remanded, but reversed and Defendant need not be subject to SBM.

State v. Morton. Reversing denial of suppression motion. Police had been informed by a CI that Defendant may have been involved in a drive by shooting and other CIs said he was selling drugs. The officer couldn't remember exactly when the CIs said this, but he was rumored to be drug dealing. When officers approached Defendant on the street, he began almost to jog towards his grandmothers house and was so nervous he couldn't get the key in the front door.

The Officers approached and told him they needed to talk with him. They patted him down and felt a "hard rectangular object", based on training to be a digital scale. They arrested the Defendant for paraphernalia and, upon complete search, found crack.

While stop was ok, the frisk was not. There was no reasonable, articulable suspicion that defendant was armed and dangerous. Nothing to support CI statements were reliable and no objective facts to suggest cops were in danger.

Reversed.

State v. Payton. Defendant convicted of burglary, where evidence mainly consisted of a fingerprint found at the scene.

No error in courts refusal to instruct, as requested by Defendant, that the jury not convict if they do not find beyond a reasonable doubt that Defendant left the fingerprint at the time of the burglary. The Judge must issue instructions at Defendant's request if they are correct statements of law and supported by the evidence. This instruction was not supported by the evidence, as there was other evidence, in addition to the fingerprint (albeit weak) that could inform the juries decision (thus, even if didn't find the fingerprint was left by Defendant beyond a reasonable doubt, could still convict).

Defendant challenges his conviction for Armed Robbery and Kidnapping. To convict on both, the jury must find seperate acts of restraint, beyond that inherent in an armed robbery. Here, Defendant ordered the victims at gunpoint to enter the bathroom and lie down. This was not a act of restraint seperate from the robbery (compared with cases where victims were bound or moved to a different room to prevent notice by outsiders), and did not constitute kidnapping.

Remanded for resentencing on armed robbery alone.

OTHER CASES.

State v. Carter. Sufficient evidence of rape and statutory rape where victim testified that it occurred (and Defendant confessed). Error in failing to conduct jurors to court room, where they asked during deliberation to see certain statements, but error was not prejudicial.

State v. Harris. In PWISD Cocaine, challenge under 404(b) to admission of prior arrest for same offense. At first trial, in 2007, Judge Frye kept the evidence out under 404(b) and the jury deadlocked (on an interesting note, Defendant represented himself!). At the subsequent trial, Judge DeRamus allowed it in (Defendant was asked his position on this and he said, "It don't have nothing to do with this case." -- as good a 404(b) argument as I can imagine...) Despite's defendant's pro se objection, the Court analyzed this under plain error.

Held it was not plain error to admit the 404(b) evidence as no estoppel doctrine to evidentiary ruling (verdicts only) (i.e. DeRamus was not bound by Frye's prior ruling).

State v. Rouse. On appeal, Defendant challenges his conviction for assault inflicting serious bodily injury.

“Serious bodily injury” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.

The trial court, however, only instructed on a permanent or protracted condition that causes extreme pain, so this is the only theory the jury could rightfully convict on. The victim here had dried blood on her face, bruising in her head, a shoulder bruise that made it difficult to move, cuts on her hand, and a broken collarbone. This was sufficient evidence for a serious bodily injury finding.

State v. Troy. Sole issue in this 1st degree murder appeal, was whether the trial court erred in denying motion to suppress calls made from jail. The trial court ruled that Defendant impliedly consented to the taping because he was warned that any call made would be taped. NC law, like federal law, requires one-party consent to record conversations (some states require consent of all parties). The warning at the beginning of jail calls that the call will be recorded put the Defendant on notice and creates his implied 1-party consent. Here, Defendant's testimony that he failed to hear the warning and the fact that 2 of the calls were "three-way" calls makes no difference. The warning was given and that creates consent.

State v. Wade. Stop of car was not illegal, where parents of the owner had called police to report their son (who is white) missing and officer saw the car and saw it was being driven by a black man (with a white man in the back seat). A brief stop to investigate was warranted.

State v. Worley. Originally published June 16, 2009. Depublished. Then republished. See original blog on it, here.

Jury returns sentence of life


The jury returned a life verdict yesterday in the case of Myron Britt in Fayetteville. They returned a verdict of guilty on Tuesday and heard evidence from his children on Wednesday. They deliberated 40 minutes before returning their verdict.

See story here.

Sunday, July 12, 2009

Steven Storch

I saw this, a different kind of candidate for District Court Judge in Durham County. Check out his website. Pretty interesting guy.

Friday, July 10, 2009

Capital Trials Underway



The Bladen County, the capital murder trial of John Hester began Wednesday Morning after two months of jury selection. He is charged with stabbing a man to death. See press here.







In Robeson County, the capital murder trial of Myron Britt continues. He is accused of shooting his wife. He was previously tried in 2006 and the jury was unable to reach a verdict on guilt. He has been incarcerated over six years awaiting this trial.

Wednesday, July 8, 2009

Former Basketball Star Charged With First Degree Murder


James Richardson, a former Rose High School basketball star--who went on to play professional ball overseas--was charged with killing two white ECU students on 5th Street (the college bar area) of Greenville.

Allegedly, Richardson had a dispute with staff there, left, and returned opening fire from a car.

Given the two white victims, there is a good chance this case will be prosecuted Capitally.

Tuesday, July 7, 2009

NC Court of Appeals Decisions (July 7, 2009)

All decisions available here.

Reversals:

State v. Ray. Reversal of conviction in child sex assault case. First, state improperly was allowed to question Defendant about prior incidents of domestic violence from the early 1990s between him and his former girlfriend. The trial court allowed this evidence in under 404(b) as evidence of intent and motive. State argued it was relevant to this because Defendant had been drinking in both the prior and current charge and both charges involved a female.

First, the state failed to show that Defendant committed the prior assaults while under the influence of alcohol. Second, the prior instances involved relationship conflict, whereas this one involved sex assault to a minor. These charges are just not similar enough to be relevant to intent.

Because this case was largely Defendant's word versus the minor's word, credibility was key. As such, admission of this evidence was prejudicial.

State v. Streater. New trial ordered on charge of sex offense. Doctor's testimony was misleading, as it suggested that the victim identified the defendant as the perpetrator, when really she used vague references. Further, the doctor rendered an impermissible opinion by stating that the lack of injury he noted to the victim's orafice was consistent with her reported history of sexual abuse. Basically, the only evidence of the sex offense was the victim's statement; this expert testimony impermissibly suggested that evidence was truth, even though no physical evidence supported it.

Also, error to allow victim to testify that she had just testified truthfully, where her truthfullness had not been attacked on cross.

Other Cases:

State v. Anderson. Defendant was released for sex crimes against a child. He was subsequently ordered to be monitored by satellite for the rest of his life. Denied, largely citing Bare.

State v. Black. Defendant challenges an officer's testimony, who testified after hearing an audio and reading a transcript of his prior police interview, arguing that such items were not proper recorded recollections or properly offered to refresh. Generally, anything can be used to refresh a recollection, but a proper foundation must be laid showing that: the witness did not remember something (not that they merely said something different than expected; they must say, "I don't remember"), that the thing refreshes recollection, and the witness now has a present, independent recollection. Here, foundation was adequately laid, as the witness stated that hearing the audio did refresh his memory to "certain aspects of the case." The appellant apparently suggested in its pleadings that the trial court made statements badgering the witness to be refreshed, but, unfortunately, any such statements from the bench are not included in the order. Other issues not properly raised or raised only for preservation.

State v. Cloer. Defendant, who admitted a probation violation, could not properly raise issues of the amount of CTS he was awarded, as it is not an appeal of right in that situation. The appropriate remedy is filing an MAR.

State v. Levall Davis. Defendant stole the dock, but not the "brain" of a car DVD player that retails for $1,300. Only issue on appeal is if the property was valued at $1,000. To be guilty of felony possession of stolen goods, the state must show the fair market value of the property is $1,000. Court found that the dock was worth $1,300, even though the evidence showed the dock was essentially non-functional and had no value without the brains. Why? "Here, the jury could have reasonably concluded that the value of the DVD player deck defendant possessed was worth over $1,000.00 based on Putney’s testimony that the entire system retails in his
store for over $1,300.00."

Pretty silly, huh? Does anyone really think that you could sell the used dock and not the brains of a $1,300 DVD player for $1000? Me neither...

State v. James Davis. Case involves a drunk driver who veered off the road, hit someone and killed them. Found guilty of DWI, reckless driving, SBI by MV, ASBI by MV, two counts of felony death by motor vehicle, and two counts of 2nd degree murder.

Defendant challenges the 2nd Degree Murder conviction, claiming no showing of malice. Malice here where Defendant had a BAC of .13 and hit a sign and kept driving, even after he should have known he was a danger to others. Malice found despite defendant only traveling at 46 mph.

Defendant cannot raise his double jeopardy claims, that felony death by vehicle and felony serious injury by vehicle, as they were not raised at trial.

State v. Hubbard. Defendant violated terms of his probation to report at curfew "in a reasonable manner," when officers found him drunk in his home after curfew.

State v. Lark. Sufficient evidence of sex offense in child's testimony about even. In jury instruction, judge mispoke and said Defendant is accused of "performing fellatio" on the minor, rather than the actual charge of forcing the minor to perform fellatio on him. No error, as judge said it right two other times.

No error in admitting expert testimony that the minor now had PTSD, as such can be admitted for "corroborative purposes." Here, no limiting instruction was given to that effect. No error, as counsel did not request such a limiting instruction.

State v. Maduras. Challenging admission, under 404(b), in assault on officer case, of prior domestic violence incidents involving defendant. No error, as this information was "necessary to provide a complete picture for the jury" (i.e. explain surrounding events).

State v. McClary. Defendant convicted for taking an indecent liberty with a minor, by giving her a note saying (in colorful language) that he wanted to have sex with her.

"A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either: (1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of gratifying sexual desire[.]" N.C.G.S. 14-202.1

Because the letter overtly solicits sexual acts, it meets the standard under the statute.

No prejudice in the admission of another letter defendant gave a different child.

State v. McLeod. Felony possession of firearm conviction remanded for new trial. Found defendant "consented" to a search by admitting to an officer that he owned a gun and where it was in the house in response to police questions. But, remanded for new trial, as court allowed Defendant to fire counsel and proceed pro se in the middle of the trial without making proper inquiries.

State v. Miller. Officer made reasonable investigative seizure of Defendant where, during traffic stop, Defendant kept his hand clenched and officer believed it might contain a weapon (it contained drugs; when officer said, "open your hand," Defendant backed up and the officer hit him with a nightstick).

State v. Porter. Defendant guilty of common law robbery where: took box of shoes, once outside a store confronted by manager, put down the box, assaulted the manager, and then fled the scene without the shoes. The court found that it was all part of a continuous transaction and found that neither order of the theft and assault, nor the fact that he abandoned the goods negated a finding of guilt.

State v. Rivens. No error in denying motion to suppress, finding Defendant consented to search on these facts:

"Officer Correa told defendant that he was investigating a report of gunshots. Officer Correa asked defendant if he had anything on him that Officer Correa should know about, and defendant responded that he did not. Officer Correa continued, asking defendant whether he had been smoking marijuana, and defendant did not respond. Officer Correa asked for defendant’s consent to be searched. Defendant said, “Go ahead,” and he raised his arms over his head. During this search, Officer Correa did not find a gun, but he did find a small bag in defendant’s pocket which held four smaller baggies, each containing what appeared to be a rock of cocaine."

State v. Yarborough. Jury found Defendant guilty of kidnapping, burglary, and 1st degree murder.

Finding it a legal impossibility of being guilty of felony murder, where the underlying felony murder was kidnapping with specific purpose to commit murder (to be guilty of kidnapping, you must confine someone with purpose of comitting a felony; if the underlying felony is kidnapping is murder, then not felony murder and still have to prove p&d--which they couldn't here). However, Defendant did commit underlying crime of burglary, so 1st degree murder conviction sand.

No kidnapping here, as state couldn't show specific intent to confine for purpose of committing a felony (murder), as no specific intent to commit murder.



Wednesday, July 1, 2009

Racial Justice Act Moves Through the House


The Racial Justice Act, a bill that would allow Defendant to challenge their death sentence (or pre-trial death certification) on basis that the District Attorney or the Jury improperly used the race of the victim or the defendant in making their decision, passed the House J-I committee yesterday. There are only a few steps remaining for it to become law.

Click here for a great article on its passage.

Monday, June 22, 2009

Supreme Court Update, June 18, 2009

State v. Abshire (535A08). COA reversed, conviction upheld. Conviction for failure to notify state of change of address for sex offender registry. Law requires written notice of a change of address within 10 days. Defendant 1st reported in October of 2001 and reported 13 changes since that time. State's evidence consisted of a statement of a person at the reported address saying that Defendant did not live there, but was only "in and out" and received USPS mail there. Defendant had gotten into a fight and moved in with his parents for, according to his parents, two weeks, but was planning to return to his other address when things cooled off. Held. Address is not just where one receives mail, but the actual place of abode, whether permanent or temporary. Here, temporary change of abode for more than 10 days, so changed address and guilty. Court refused to apply the lenity doctrine, finding that the meaning of address was clear. Court of appeals decision, reversing conviction, reversed. (See original post of COA decision.)

State v. Alston, (558A08). Per curiam affirmed. See post on lower court decision, on issue of constructive possession, here.

State v. Icard
(236A08). Trial court erred in denying motion to dismiss. Defendant was removed from a truck, ordered to bring her purse, and placed in a police car to be questioned. During questioning, the Officer asked to see what was in her purse. Defendant handed the officer her purse. It was searched and contained drugs. Held: Fruit of the search must be suppressed as the product of an illegal seizure. The officers actions in ordering her out of her car and into his for questioning was a seizure, for which he did not have probable cause. Here, the Officers actions in
initiating the encounter, informing the defednant he was investigating drugs and prostitution, call for backup, persistence after defendant failed to responds to his original requests, request that the Defendant produce ID, and request that the Defendant exit the vehicle and bring her purse constituted a seizure, as a reasonable person would not feel free to leave.

Justice Newby Dissented.

State v. Maness, (402A06). After an hour and forty minutes of deliberation, the jury came back with a life verdict. During polling, however, 7 jurors indicated that they did not agree with that verdict. During this process, people in the audience were crying and cheering. The Judge found that he had to order more deliberations and denied defense motion for a mistrial. About an hour later, the jury came back with a unanimous verdict for death. Defense renewed its motion for a mistrial, based on the emotional response. While the trial court erred in believing it did not have authority to impose a life sentence, it did not commit error by requiring more negotiations. Hudson dissented.

State v. Ramos, (535A08). COA decision affirmed, granting new trial, where Court failed to instruct on the element of willfullness. (See post on COA decision).

Thursday, June 18, 2009

Court of Appeals Decisions, June 16, 2009

A pretty uninteresting lot...

State v. Bare, (08-818). Defendant challenges enrollment in Satelite Based Monitoring (SBM) based on his conviction for indecent liberties with a minor in 1998, years before passage of the law to SBM sex offenders, as an ex post facto law. Ex post facto forbids applying new crimes or enhanced punishments to actions already committed--basically on notice grounds. Defendant arguees that SBM inflicts a greater punishment than the law that made his conduct a crime when committed.

The Court found the purpose of the law was not to punish, but rather to regulate and protect, and as such is not an ex post facto violation. (eds note: yeah, right).

State v. Garcia, (08-1312). Issue: Whether officers had reasonable suspicion to stop based on a tip. Answer: Yes, because they sufficiently corroborated the anonymous tip. The anonymous informant called and said Marijuana was stored and sold at a particular residence. The resident of that address had a lengthy history of "police contact, including suspicion of narcotics and firearms offenses." Police conducted surveillance and saw two men frequently run in and out of the house from their cars, go into a shed behind the back, and return to the cars. The men carried bags. Here, this was sufficient corroboration to give rise to reasonable suspicion to conduct a Terry stop.

State v. Goode, (08-1145). No IAC in lawyer arguing to jury client is only guilty of 2nd and not 1st degree murder, despite claim by client that this was without consent, where judge directly addressed the client on this issue on the record. No error on failure to hold competency hearing where actions of defendant's counsel waived such hearing. No error on other issues.

State v. Largent, (08-1108). Claim by surety appealing denial of motion to set aside bond forfeiture. Motion made on basis that Defendant was incarcerated in another state and that was why he failed to appear. However, notice of this basis was untimely, as the DA must be notified while the Defendant is still incarcerated.

State v. Worley, (08-1532). No error in conviction for willful failure to change address for registered sex offender (sentenced to 107 to 138 months).

On 9/14/04, Defendant reports his address at Candler Knob.

On 5/19/04, Defendent submits a change of address back to living with a friend in public housing, as he had been evicted. A Detective infomed the Housing Authority that Defendant was living there, and the housing authority threatened to evict his friend unless the sex offender moved out.

On 8/10/05, Defendant and his friend were evicted from public housing.

On 9/16/05, Defendant submitted a change of address saying he moved back to Candler Knob.

Under the law, a sex offender must submit a new address within 10 days. Defendant took 36 days to submit a new address. He claims this was because he lacked a residence and was "drifting." The Court said he should have reported wherever he actually was, therefore the conviction was valid.

(Ed note: this is really crazy. So, this semi-homeless guy who bounces around, gets evicted because the police tell the Housing Authority he is there and get him evicted. 36 days later, he finds a new place and submits his address, and they lock him up for 10 years for not reporting his address (or rather, reporting it 26 days late). That is an incredible waste of resources to lock this guy up for 10 years. I'm not sure the court got it wrong, but I am sure our legislature did.)

Wednesday, June 17, 2009

New Trial Ordered for David Gainey


Superior Court Judge Gregory Weeks granted a new trial to David Gainey, removing him from death row. The Judge found that the prosecution had withheld evidence from the defense that suggests that another person committed the murder and that his original trial counsel inadequately investigated certain aspects of the case.

Monday, June 8, 2009

Article on Habitual Felon

Studies show repeal of habitual felon law would save $190 million over 5 years in North Carolina, but, like all serious criminal justice reform, it will never be repealed because its the third rail of NC politics: being "soft" on crime.

See N&O article, here.

Thursday, June 4, 2009

Court of Appeals Update, June 2, 2009

Reversals or Other Decisions of Note

State v. Black, (08-1009). Probation revocation vacated. Trial court lacked jurisdiction because hearing held after probation expired and State failed to follow the requirements of 15A-1334(f). Under 15A-1334(f), to revoke after expiration, the state must have filed a motion before expiration and make reasonable efforts to notify the Defendant of it's intent to revoke. Here, the State did not make reasonable efforts merely by issuing a warrant and transferring his case to a surveillance officer. This is enough if the Defendant is an absconder, but here the trial court made findings that he was not an absconder. Because the State didn't make reasonable efforts, there was no jurisdiction. Note. 15A-1344(g) was amended effective 12/1/08 doing away with the requirement of reasonable efforts, so this decision has little future value.

Other Cases

State v. Crocker, (08-1363). 1st, Evidence sufficient for sex offense, evidence of penetration was child's statement that she was touched "where she pees" and that she felt faint and Doctor's testimony that description of feeling faint and pain is more consistent with touching inner labia (i.e. penetration) than outer. 2nd, no reversible error where medical expert offered an opinion on truthfulness of the minor (generally forbidden) because it was offered in response to a defense question.

"Did you ever ask her _ I guess, did you ever ask her if she was telling you the truth?" Witness: "I did not specifically ask her. I felt like what she was telling me was the truth."

State v. Dalton, (08-873). No error where state failed to give 10 days notice of intent to submit grossly aggravating factors, in a DWI case, required under 20-179(a1)(1), because the provisions effective date is after the Defendant committed the DWI.

State v. McGee, (08-1285). The fact that the principle pleads guilty to a lesser offense, does not prevent another from being charged and convicted for accessory after the fact to the greater, originally charged offense.

State v. Via, (08-1147). Defendant appealed, interlocutory, a motion to suppress. Court granted writ, but affirmed denial. Part of Defendant's argument was that the state shouldn't have been allowed to appeal the District Court's grant of the motion to suppress to Superior Court (which reversed). The Court Appeals found no problem with that interlocutory appeal to Superior Court.

State v. Wallace, (08-1429). No error in instructing jury in disjunctive thories for AWDWISI, where substantial evidence was presented on both theories.

Wednesday, May 20, 2009

Court of Appeals Update, May 19, 2009

Reversals and Interesting Issues

State v. Douglas, (08-1287). Special Verdicts: New trial ordered. Jury entered a special verdict, finding that Defendant possessed cocaine with intent to sell and sold cocaine to an undercover officer. If did not render a general verdict of guilty (or not guilty). Special verdicts (on issues of guilt rather than finding aggravators/etc), are constitutionally impermissible--violating the 6th Amendment right to a jury trial. Juries must make an actual finding of guilty or not guilty.

State v. Fowler, (08-652). Defendant won a motion to dismiss in district court, with the court finding the officer lacked probable cause for the stop and a reasonable jury could not convict. The State appealed to Superior Court. The Superior Court found that the State could not appeal under N.C.G.S. 20-38.6 and 20-38.7 as that would violate Due Process and Double Jeopardy.

1st, Jeopardy had not yet attached as the Court dismissed the State's case based on a pre-trial motion; jeopardy does not attach until the Court begins hearing evidence on the issue of guilt or innocence, not pretrial motions (NCGS 20-38.6(a) requires motions to suppress evidence for implied-consent offense must be done prior to trial). Double jeopardy does, however, preclude appeal in dismissals for motions made during trial (authorized where based on new information learned at trial--ed. note: which happens all the time in district court as there is no discovery)

2nd, no due process violation either.

State v. Gayton-Barbossa, (08-863). Larceny conviction vacated where indictment said property belonged to a different person than the evidence the state presented at trial.

State v. Popp, (08-985). In April 2006, Court entered a PJC (with a variety of conditions-such as performing community service and keeping a curfew). In February 2007, Court came back and ordered Defendant to comply with random drug testing, pay $200 for community service, and pay supervision fees. In March 2007, State moved for final judgment; Defendant entered evidence he had complied with all conditions and the Judge dismissed the case.

First, the April Judgment was a final judgment, not a PJC, as the court issued conditions amounting to punishment. “Conditions amounting to punishment include fines and imprisonment. Conditions not amounting to punishment include requirements to obey the law, and a requirement to pay the costs of court."

Second, the March 2007 court had no authority to dismiss, as a final judgment can only be vacated by writ of habeas corpus or MAR.

March order vacated. Remanded to reinstate the April judgment.

Other Cases.

State v. Allen, (08-773). Detention: Appealing challenging DWI stop. Court found stop a reasonable investigatory stop. Information was based on tip received from face-to-face encounter with a victim from a fight (stating attacker fled in red car with a blonde-haired woman); this is much more reliable than an anonymous tip.

State v. Miller, (08-650). First, Defendant challenges admission of DVD of interview where officer's, in their questions, refer to statements of non-testifying third parties (each of which suggested Defendant's guilty). No error, as these statements were non-hearsay and only offered to show effect on Defendant and not unduly prejudicial under rule 403. Other jury instruction issues.

State v. Palmer, (08-633). In DWI case, district court issued order suppressing stop. DA appealed to superior court. The superior court found that the state failed to properly file an appeal because it didn't say it was filed within 10 days and found the appeal "void." State appeals and Court of Appeals exercises jurisdiction by writ. Reversed, noting the appeal was filed within 10 days and no requirement exists that it state on its face that it was filed within 10 days.

State v. Swann, (08-1195). No error in denial of motion to suppress DNA evidence (obtained by matching Defendant to samples already in possession from prior case) , even though it was previously ordered destroyed by a different Judge.

State v. Wilson, (08-782). Trial court denied Defendant offer of witnesses statement (recorded on tape) to a police officer, where the witnesses on the stand said she couldn't remember the event, nor giving the statement to police--even stating that she was a "mental patient" and she was liable to say anything. Defense offered the statement as a recorded recollection under 803(5). To lay foundation for a prior recorded recollection, you must establish that the witness cannot presently remember and made a recorded statement at a time when her memory was fresh. Here, no foundation that prior statement made when the fact was fresh in her mind, given her statements that she is "liable to say anything." As such, it is hearsay not within any exception and not admissible. No error on other jury instruction issues.

Friday, May 15, 2009

On trial for your life


Michael Ryan

The trial Michael Ryan, accused of shooting David Farrar, continues in Gaston County. Press has been sparse, but it appears they are still in the guilt phase. 12 jurors were in the box on April 27 and the court began hearing evidence.


In Fayetteville, NC, another capital case completed the guilt phase and a jury could not decide on a verdict. A mistrial was declared. Mark Andrews, pictured below, is accused of taking justice in his own hands and murdering a man whom he believed to have molested a female friend. Andrews protested his innocence and the main state witnesses had long criminal records and questionable motives. It is unclear at this time if the state will be seeking to retry Andrews.

Good Article in the Indy

The Indy published a great article on the current moratorium on executions in North Carolina and interesting reforms pending in the legislature. To read, click here.

Wednesday, May 6, 2009

Court of Appeals Update, May 5, 2009

Opinions of Note / Reversals

State v. Norman, (08-1165). Hearsay Issue: In sex abuse case, judge refused to allow medical examiner to testify on cross that mother stated that the she didn't believe the child had been molested, as an 803(4) statement for purposes of medical diagnosis exception to hearsay. In order to be admissible under Rule 803(4), the testimony must meet a two-part inquiry: "(1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment." The court ruled that, even if a third party statement to medical personel could be admissible under this rule (without ruling on this issue), in this case there is no evidence that this statement reasonably pertinent to receiving a diagnosis or treatment as their is no evidence the child told the mother anything about this incident and the mother herself was under investigation by child protective services. Sufficiency of Evidence: Evidence sufficient to show anal penetration where child testified that Defendant stuck "his ding-a-ling in my back or my bottom. Sometimes he does it in the front." No error on other issues.

State v. Peele, (08-713) . Conviction overturned, stop should have been suppressed. In DWI case, Officer did not have reasonable, articulable suspicion necessary to conduct traffic stop where evidence of crime was an anonymous tip of unknown reliability and officer's observation of a single weave over a distance of .1 miles.

Other Decisions
State v. Dawkins, (08-1257). Sufficient evidence for jury to convict of 1st degree murder on felony murder theory.

State v. Hinton, (08-758). Defense failure to object constituted stipulation that out-of-state convictions were "substantially similar" to NC offenses.

State v. McKoy, (08-923). Defendant challenged indictment for Rape and Sex Offense, as indictment did not include the element "against another person" on its face and only used the victim's initials, RTB, with no periods. Court found that inclusion of this element was not necessary and that RTB was adequate to give notice of the alleged victim.

State v. Reaves, (08-1128). Defendant failed to preserve his 404(b) challenge, by not renewing his motion in limine when the evidence was offerred at trial. No prejudice due to sustained objections, where Defense eventually got the profferred evidence in through subsequent questioning. Sufficient evidence of sexual offense in testimony of child that privates entered her mouth, even though it was dark.

State v. Thomas, (08-515) . Trial court properly refused, in a rape case, to instruct on the lesser offense of assault on a female--as it is not a lesser included offense.

State v. Wilkerson, (08-819). Defendant challenged sufficiency of evidence in a 1st degree murder conviction where state's entire evidence consisted of his possessing the murder weapon three days after the murder and his motive and opportunity to commit the crime. Court found this as sufficient evidence.

State v. Young, (08-872). Sufficient evidence to convict of aid and abetting in 2nd degree murder case where: "the evidence presented at trial tended to show that Defendant drove Batiste to the neighborhood; stopped the vehicle in front of Douglas Mangum's residence with the headlights off; sped away from the scene after the shooting; threw the shell casing out of the car window; and dropped Batiste and the other passengers off in Cary, telling them to “get low ” or “get missing.” There was also evidence that the rifle used in the shooting belonged to Defendant, Defendant frequently kept the loaded rifle in the vehicle , and the vehicle was detailed before Defendant left town the next day. Further, the trial court heard testimony that Defendant and Batiste were “tight”; they were both members of the Crips; Defendant had a superior rank of “original gangster” to Batiste's low-rank of “foot soldier”; and Defendant knew that Batiste was planning to redeem his reputation that night in a neighborhood known as Bloods' territory."