Sunday, March 22, 2009

NC Supreme Court Decisions (3/20/09)

NC Supreme Court Criminal Decisions

Notably, the Court did not hand down a decision on the Medical Board Case--regarding the authority of the medical board to discipline doctors for participating in executions. The moratorium lives on...

Discussion of Cases of Note

State v. Garcell, capital verdict appeal, no error in wide variety of issues.

Jury Selection: Trial Court refused to strike for cause juror who admitted during voir dire that she knew the Defendant's ex-girlfriend and had spoken with her about Defendant's arrest; knew the victim's son, who was a friend of her husband's from high school, but hadn't seen him in six years; and met the victim previously, but hadn't seen her in 18 years. Court found that Defendant failed to preserve his challenge. To preserve, you must: (1) exhaust your peremptory challenges; (2) renew motion, stating that you either used a peremptory challenge on this juror or would have but for not having any left; and (3) have that renewed motion denied. The Court here is unclear, but it appears that the Defendant exhausted his peremptory challenges and renewed his motion, which was denied, but did not specifically allege that he would have used a peremptory challenge, but didn't have any left.

No error where trial Court excused for cause three jurors whose answers indicated some reservation about the Death penalty.

No error in other issues, including MAR on IAC claims. One interesting issue, the Defense challenged the use of prior violent felonies as an aggravator where the felonies were committed before the age of 18, citing Roper v. Simmons (2005) (cruel and unusual to sentence to death for murders committed prior to age 18). The Court found that "inapposite to the instant case."

Upholding proportionality review, largely due to strangulation as means of death.

State v. Miller, the S.C. reversed the Court of Appeals and found that the jury reasonably convicted Defendant on theory of constructive possession where the crack was found within reaching distance of the Defendant, even though Defendant was not the owner or lessor of the home, others had possession and access to those areas where the drugs were found, Defendant did not appear nervous at time of arrest, and Defendant not observed to make motions consistent with hiding or throwing away the drugs. Justice Brady dissented.

Other Cases

State v. Lawrence, per curiam affirmance. See Court of Appeals decision here.

State v. Sellars, affirmed on sentencing issue, then went on in dicta to discuss the relation between insanity and the aggravator of knowing creation of great risk by means of hazardous weapon.

State v. Smith, digged by the court.

Wednesday, March 18, 2009

NC Court of Appeals Decisions (3/17/09)

NC Court of Appeals Criminal Decisions


State v. Boggess, (08-746). Mr. Boggess was sentenced to death in January 1997 for 1st Degree Murder on theory of felony murder and premeditation and deliberation. He successfully appealed and received a new trial. He was re-tried and convicted solely on theory of felony murder and sentence to life without parole. At trial, Defendant's theory of the case was a defense of unconciousnes. He claims that he was in a dissociative state when he committed the killing--a claim supported by expert testimony.

The trial court gave the unconciousness instruction only on premeditation and deliberation, not on felony murder. The trial court also refused to instruct that a person found not guilty by unconsciousness would be subject to involuntary committment.

The Court found that the unconsciousness defense was not a defense to felony murder, as evidence did not support a finding that he was unconscious when he committed the underlying felony (kidnapping). Under the courts interpretation, no further act is required; as such, Defendant's unconsciousness at the time of the killing is no defense to felony murder unless he was unconscious when he first committed the underlying felony.

State v. Cortes-Serrano, (08-591). 1st, evidence of age for statutory rape is sufficient even where only evidence is testimony of the victim; 2nd, each instance of sex is a distinct and separate offense, not part of a continuous transaction; 3rd, no improper promises or threats induced Defendant's confession; 4th, no improper cross examination by state about prior forcible rape charge--despite motion in limine denying such cross--where Defendant opened the door by saying, on direct that he “was scared . . . and they trying to tell me I done raped a Mexican girl.”

State v. Fields, (08-627). Police stopped Defendant on suspicion of DWI, due to weaving and crossing the white line. During stop, Defendant denied drinking and the officer saw no signs of drinking or any illegal activity. The officer ran his plates, then returned. On return, he noticed a pack of rolling papers. According to the officer, the Defendant then consented to a search of the car; the Defendant testified that he did not consent. During the search, the officer uncovered marijuana and cocaine.

The Court reversed, finding no reasonable suspicion to justify the initial stop. Weaving, without more, cannot produce reasonable suspicion of DWI. There must be other additional articulable facts to indicate a DWI (e.g. weaving and driving below the speed limit; weaving plus driing off the road; weaving plus speeding; weaving plus driving at 1:43a near bars; weaving plust driving at 2:30a near a nightclub). Here, Defendant weaving at 4:00p was not reasonable suspicion for a stop.

State v. Jacobs, (08-564). In first degree murder case, trial court refused to allow Defendant to inquire into the victim's prior bad acts and reputation--relevant to his self-defense claim. The Court refused to allow the following questions of one of the victims friends:
  • Did [Nichols] carry nine millimeters around with him all the time?
  • How many times have you seen [Nichols] carrying a nine millimeter?
  • Are you familiar with [Nichols] reputation in the community?
  • [W]hat do you know [Nichols] was [previously] convicted of?
  • [D]id you hear about [Nichols'] reputation?
Defendant was also prevent from entering in certified copies of the victim's prior convictions for armed robbery.

Court found that the reputation evidence was properly kept out, as the witness had no personal knowledge of the victim's convictions and the convictions were properly kept out under Rule 404(b) (ed. note: not relevant to state of mind??)

Note: Dissent by Judge McGee, that Defendant's knowledge of prior crimes by the victim was relevant to state of mind (in self-defense, defendant must show reasonable, actual fear is an element).

Other Cases

State v. Frady, (08-1215). Defendant argued that the Court lacked subject matter jurisdiction in a truancy case, as the school had not followed certain administrative procedures. The Court found that such procedures were not necessary to provide jurisdiction; rather, they were elements of the crime to be found by the jury.

State v. Lilly, (08-421). No fatal error where indictment, in injury to real property case, lists the lessee as the owner.

State v. Maynard, (08-847). Ordinance limiting number of dogs on property to three not unconstitutional. Defendant argued that the ordinance lacked a rational basis.

State v. Rinehart, (08-1209). No right to appeal prior motion to dismiss, where Defendant entered guilty plea.

State v. Vincent, (08-1137). In a murder case, Defendant's theory was that the victim's father had hit his car and he followed him home. Once there, they argued and Defendant pulled a gun. When the father grabbed his hand, he fired and the child victim was hit and killed. The trial court refused to give the accident or the manslaughter instruction. Under plain error review, the Court upheld conviction for 2nd degree murder. The Court found no heat of passion, as under Defendant's theory, the gun went off by accident during a struggle and under the State's theory, the gun went off during an argument (aparently, the argument wasn't enough to create a reasonable passion...)

Death penalty applied unevenly

- Staff Writer

DURHAM -- A couple of defense lawyers are using a local death penalty study that mirrors the racial disparities highlighted in national analyses to try and keep their client from being prosecuted capitally.

An analysis of 177 murder cases over five years shows that prosecutors are six times more likely in Durham, one of the most diverse counties in the state, to seek capital punishment when a black suspect has been accused of killing a white person compared with when the victim is black.

Jay Ferguson and Lisa Williams, two Durham lawyers, plan to use the analysis in their defense of Keith Kidwell, a 24-year-old black man who has spent the past four years in jail awaiting trial on charges that he murdered Crayton Nelms, a white Kangaroo convenience store clerk found beaten to death at work in February 2005.

Ferguson and Williams will argue in court this week that the death penalty should be taken off the table because of the racial disparity issue. They also say their client has been denied his right to a speedy trial and the whole case should be dismissed.

The Durham analysis was conducted by Isaac Unah, a political scientist at UNC-Chapel Hill.

The researcher looked at all murder cases indicted by the Durham grand jury and followed them from start to finish.

Of the 177 murder suspects indicted by a Durham County grand jury between 2003 and 2007, 50 could not be prosecuted as death penalty cases because the defendants were too young.

Of the 127 other cases, only 20 were ever capital cases. None of those went to jury as a death penalty case because prosecutors often use the threat of capital punishment in bargaining for pleas.

James Coleman, a Duke University law professor who worked on the American Bar Association's Death Penalty Moratorium Implementation Project, said that although the case sample seemed small for a sweeping analysis, the conclusions hold pace with centuries-old patterns.

"That goes back to the Civil War times," Coleman said. "Prosecutors always sought the heaviest punishment for the black defendant when the victim was white. Those patterns have continued."

Although the 20-case sample is small, Kidwell's attorneys say the larger picture is the more troubling trend they plan to broach with a judge.

"These numbers are alarming," said Ferguson, a Durham lawyer brought into the case in September 2007. What it shows is race is the predominant factor over this five-year period for which defendants the state seeks the death penalty on."

The researchers considered more than race. They also analyzed the cases by the number of victims and the number of charges the suspects faced.

"Of all the factors analyzed," Unah concluded in the affidavit attached to his study, "the race of the victim had the greatest effect on the decision to seek the death penalty."

Of the 107 cases where the suspect was black and the victim was black, prosecutors sought the death penalty nearly 10 percent of the time. Of the 20 cases where the suspects were black and the victims white, prosecutors sought the death penalty 35 percent of the time.

The findings come at a time when a Racial Justice Act proposal is back before state legislators. The act would give defendants in capital murder cases the right to challenge their prosecution on racial bias grounds.

"This is exactly why we need it," Ferguson said.

District Attorney Tracey Cline, the prosecutor assigned to the Kidwell case, declined to discuss the findings but in a brief court hearing last week asked for more of the raw data so her experts can do their own analysis.

Other factors to consider, said Coleman, the Duke law professor, are whether the victim and suspect were strangers, which often brings threats of harsher punishment.

In gang-related cases, Coleman added, prosecutors often do not seek the death penalty because the victims might have provoked the crime.

In North Carolina and elsewhere across the country, the number of people sentenced to death has dropped dramatically in recent years.

In 2008, 13 juries in this state could have chosen death for defendants. Only one in Forsyth County did.

Kidwell, according to his attorneys, has been offered one plea deal that, had he accepted, would have put him behind bars for the rest of his life.

"I believe they're using the death penalty to extract plea bargains," Ferguson said.

The crux of the matter is set for hearing Thursday.

Thursday, March 5, 2009

North Carolinians Losing Taste for Death?

Last year, NC juries only issued one death sentence (James Ray Little, in Forsyth County).

This month, Elon University released results of its latest poll on the death penalty. Results are below:
  • Most Appropriate Punishment for 1st Degree Murder: 48% Death, 39% Life in prison
  • Punishment Supported for 1st Degree Murder: 72% Life without parole; 58% death
  • Agree with current moratorium on executions: 47% agree, 45% disagree

See full poll here.

Wednesday, March 4, 2009

NC Court of Appeals Decisions (3/3/09)

Court of Appeals Criminal Decisions


State v. Thomas, (08-599). Ordering a new trial, where Defendant was denied his right to use his last peremptory challenge. After the jury was impaneled, the Judge learned that one of the seated jurors attempted to contact the DA's Office prior to impanelment. The Court re-opened voir dire. The juror had gone to the DA's office, hoping to see an old friend, but didn't find them. After voir dire, the Defense moved to use its remaining peremptory challenge to challenge this juror. The Court denied this and kept the juror seated.

Held: Once the trial court reopens examination of any juror, each party has an absolute right to exercise any remaining peremptory challenges. Because the judge denied Defendant use of his challenge, the case is remanded for new trial.

State v. Williams, (08-314). Denial of motion to suppress reversed and remanded on issue of plain feel doctrine. During terry stop (defendant was found near scene of robbery, matching a description of the robber), officer patted down Defendant and felt what he believed to be a "crack cookie. The officer pulled the bag out of Defendant's pocket and found a crack cookie. During search incident to arrest, he found a pipe and less than 1/2 ounce of Marijuana.

First, the Officer had reasonable, articulable suspicion as the Defnedant was in the vicinity of the armed robbery, in the direction which the robber had fled, and matched the general description of the robber (African-American male, about 6' tall with medium build, wearing a green jacket with a hood). The fact that this description was part of a second BOLO, correcting the first one, did not deprive the officer of reasonable suspicion.

Second, the trial court applied the wrong standard for plain feel. The trial court applied a "reasonable suspicion" test to the plain feel. This was the wrong standard. For plain feel searches, it must be immediately apparent to the officer that the object is a contraband, giving him probable cause.

Other Cases

State v. Revels, (08-346). Appeal of refusal by trial court to instruct on self defense and imperfect self-defense. To obtain either instruction, there must be evidence--any evidence in the record--that Defendant had a reasonable belief that it was necessary to kill his adversary to protect himself from death or great bodily harm. In this case, the court found such evidence was not present.