Monday, February 23, 2009

Death Sentence for Sherrill

Michael Wayne Sherrill

Michael Wayne Sherrill

First death sentence of 2009: issued from Mecklenburg County, for the rape and stabbing of Cynthia Dotson.

Family Members Make Emotional Pleas During Sentencing In Death Penalty Case

The families of both a convicted killer and his victim made emotional pleas to a jury Thursday.That jury is deciding whether Michael Sherrill should die for raping and killing Cynthia Dotson at her west Charlotte home 25 years ago. Sherrill then set the home on fire to try to destroy the evidence.The jury will begin deliberating its decision Friday. They found Sherrill guilty of first-degree murder, rape and arson late Wednesday afternoon.

Jurors have a lot to consider. In the fifth-floor courtroom, Dotson’s brother, John, told jurors her death devastated the whole family.But Sherrill’s family spoke out to save his life. They said in the years before Dotson was found stabbed to death in her Wilkinson Boulevard trailer, Sherrill's life was out of control with gambling and drugs.But by 1991, they said, Sherrill was sober with a steady job."He straightened up, became a real good person," his brother, Keith Sherrill, told jurors.But during the trial, jurors also heard about another 1984 crime that Sherrill is charged with -- a triple slaying that took place in a Charlotte house where Linda Taylor, Jackson Bostic and his daughter, Amy, were found beaten to death.Amy's sister, April Bostic, said she is now able to finally find justice.“They say, you know, Michael made changes. Well, good for him. But my dad didn't get that chance and I don't get a chance to hang out with my sister. My kids don't have an aunt,” she said.The jury cannot use the triple slaying to determine Sherrill’s sentence.In closing arguments, Sherrill's attorneys said their client had a troubled childhood, but that they don't know why he killed Dotson.Prosecutors made only a brief argument, saying the case deserves a sentence of death. One prosecutor banged his fist into his hand 13 times, once for each stab wound Dotson suffered.

Wednesday, February 18, 2009

Court of Appeals Decisions, 2/17/09

NC Court of Appeals Criminal Decisions


State v. Hodges, (08-474). First, found reasonable suspicion to extend traffic stop where driver "misidentified" his passenger, appeared nervous, and was viewed appearing to place something under his seat.

Second, and more interestingly, Defendant challenges admission of his passenger's statement consenting to the car search under Crawford (which held that testimonial statements--e.g. statements to police during interogation or to a grand jury--cannot be entered in without cross examination under constitutional confrontation rights). The Court initially found that he had no standing to challenge the car search, as the Defendant told the officer he had to ask permission of the passenger to search. Next, the Court found the statement to be non-hearsay (consent is a verbal act and is always non-hearsay) and thus admissible.

Ed. note: Here's the crazy part--this wasn't a hearsay argument, it was a Crawford argument. Under Crawford, it doesn't matter whether or not it was under a hearsay exception. If it was "testimonial", it must be subject to cross-examination. This decision missed the key issue and didn't analyze the constitutional claim at all.

State v. Tyson, (07-1376). Defendant's theory of the case, in this statutory rape case, was that he was unconscious during the alleged sexual acts. The victim told police that she had given the Defendant pills to knock him out, collected Defendant's semen, and impregnated herself. DNA tests showed that Defendant was the father of both of her children.

Her testimony at trial is cited as follows: "The State's evidence tends to show the following: on direct examination by the State, N.B. testified that she had given Defendant pills and then waited until it looked like he was passed out. She then “unzipped his pants[,] pulled his privacy [sic] out and started jacking him off.” She acknowledged that his penisbecame erect while she was doing this, and that “after that a little cum came out. . . . I got on top of him.” N.B. further testified on direct examination that during intercourse, Defendant did not respond to her, did not say anything to her, did not move, and did not open his eyes."

Other evidence included a statement to a police officer, who doubted his story, that he would have to think of something else and letters between the Defendant and the minor with the statement, "can I get in them drawers."

Because evidence of unconsciousness arose out of the state's evidence, it was the state's burden to prove consciousness beyond a reasonable doubt. Because of these statements and despite the victim's contrary testimony, there was adequate evidence for a jury to find he was conscious, beyond a reasonable doubt.

However, new trial granted as jury was instructed improperly and were not told that the state had a burden to show consciousness beyond a reasonable doubt. This error was not harmless, especially given the juries inconsistent verdict: guilty of statutory rape and not guilty of indecent liberties with a minor.

Note: Dissent by Hunter, saying they should have dismissed for lack of sufficient evidence.

No Reversals or Interesting Decisions

State v. Hudgins, (08-441). Appeal of motion to suppress vehicle stop. Unidentified informant called police and said he was being followed by a man with a gun, describing the car. Police pulled a car matching this description. During stop, police arrested Defendant for DWI. The Court found the informant to have the following indicia of reliability, giving reasonable suspicion.

"In the instant case, there were indicia of reliability similar to those that existed in Maready: (1) the caller telephoned police and remained on the telephone for approximately eight minutes; (2) the caller provided specific information about the vehicle that wasfollowing him and their location; (3) the caller carefully followed the instructions of the dispatcher, which allowed Officer Palmenteri to intercept the vehicles; (4) defendant followed caller over a peculiar and circuitous route that doubled back on itself, going in and out of residential areas between 2 and 3 a.m.; (5) the caller remained on the scene long enough to identify defendant to Officer Palmenteri; (6) by calling on a cell phone and remaining at the scene, caller placed his anonymity at risk."

State v. Massey, (08-831). No right to entrapment instruction in undercover buy and no error in admitting indictments for prior felonies in support of habitual felon status, during the habitual felon portion of the trial. No error in calculating points for sentencing.

Friday, February 6, 2009

NC Supreme Court Decisions (2/6/09)

The court only issued one criminal decision today:

State v. Llamas-Hernandez, (220A08), a per curiam reversal, adopting dissenting opinion below, which held that officer's lay testimony that substance seized was cocaine should not have been admitted.

Wednesday, February 4, 2009

NC Court of Appeals Decisions (2.03.2009)

NC Court of Appeals Criminal Decisions


State v. Adu, (08-582). The Court drops the ball, again, on proffered testimony that looks like propensity-evidence. In this sex abuse of a minor case, there was evidence that another person had previously sexually abused the child and there was an incident where the child's mother found blood on her underwear. Nonetheless, the Court excluded this prior abuse--which defense wanted to offer as an alternative theory to explain historic vaginal injuries--under rule 412. The rule is supposed to prevent unfair characterizations that, because a victim was promiscuous, they weren't raped; it is not supposed to exclude information that explains physical evidence. More proof that North Carolina courts do not understand the purpose of the legal relevance rules. The only rational distinction for figuring out whether or not a North Carolina Court will allow prior bad evidence in is who the proponent is. If the DA offers it against the Defendant, in it comes; if the Defendant offers it--even to explain physical evidence--it's out.

However, the Court did find error in allowing the State to question Defendant and make remarks in closing about Defendant's failure to make a statement to law enforcement--violating his right constitutional to remain silent. Of course, the court went on to hold this "harmless beyond a reasonable doubt." In a case that is basically about credibility of witnesses, such statements impact on the credibility of the Defendant, which is his whole defense. How this is harmless, I don't know. Another Constitutional violation held harmless by the NC arbiters of justice. More proof that once you are charged with a sex offense, the Court's won't honor your constitutional rights.


State v. Cook, (07-1262). Finding that trial court refusal to allow Defendant, in a child sex abuse case, to develop motive to fabricate on cross of the victim, based on problems in the home was harmless, as such motive was developed through other questions and with other witnesses. The Defendant was not allowed to ask:
  • "What kind of fights did you have with your mother?"
  • "Do you recall crying a lot about having to do house work or you doing the work?
  • "[H]ow did you express your frustrations [over your living conditions]?"
  • "Isn't it a fact that you didn't want your mother to marry [defendant]?"
Further, a doctor testified that vaginal examination of the minor was consistent with sex. The Defendant was not allowed to call the victim's boyfriend, who would have admitted to having sex with the minor during the same time period as the alleged abuse or question the victim. The Court based it ruling on (1) the failure of the Defendant to present the boyfriend at the in camera Rule 412 hearing and (2) failure of Defendant to present evidence that the sexual conduct engaged in with the boyfriend could have caused those marks [ed. note: doesn't the doctor's testimony that the marks are consistent with sex do this?]

Finally, Defendant was not allowed to put on evidence that the victim had made prior false rape allegations against other persons. The trial court found such evidence was not barred by Rule 412, but was barred by 403. The court underpinned this holding by noting that the false allegation was covering up consensual sex, whereas the Defense theory was this allegation was simply made up. [ed. note: can you imagine a court ever excluding evidence of a defendant's prior lies? I can't]

State v. Herrera, (08-491). No error in LWOP 1st Degree Murder Case. First, found no 5th Amendment right to counsel violation where police listened in on Defendant's call to his grandmother (after asserting his rights). The Court found that because the grandmother was not acting as an agent for the police, there was no violation. Also, no error where baliff spoke to jury (about a recess) outside the presence of the Defendant, as no evidence of improper statements.

Short Cite, No Reversals and No Issues of Note

State v. Brewington, (08-501). Refusing to reach challenge to felony murder, as jury also found premeditation and deliberation (alternative theories of 1st degree murder).

State v. Ford, (08-936). Sentencing calculation and habitual felon status.

State v. Kuegel, (08-587). Consent to search voluntary, regardless of dishonest things police told defendant--they told him that they had arrested a bunch of people leaving his apartment with drugs (which was not true). Court found no coercion, under totality of the circumstances.

State v. Watkins, (07-1213). No error in denying motion to withdraw plea and no prejudicial violation of attorney-client privilege in prior attorney's testimony.