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."

Monday, May 4, 2009

NC Supreme Court Decisions, May 1, 2009

NC Supreme Court Criminal Decisions

N.C. Dep't of Corr. v. N.C. Med. Bd., (51PA08). Medical Board lacks authority to discipline doctors for participating in executions. See longer post, here.

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State v. McArthur, (363PA08). Digged (discretionary review improvidently granted).

State v. Bollinger, (449A08). Per curiam affirmance of opinion below. See opinion below here. Opinion below found it harmless where judge instructed jury on possession of concealed weapon that defendant carried knives, where the indictment charged him with carrying brass knuckles. Post on Ct. of Appeals case available here.

State v. Byrd, (499A07). Under NC sentencing rule, Defendants get an enhanced sentence where they commit an assault in knowing violation of a valid domestic violence protection order. The Court found that a restraining order, issued under Rule 65 of Civil Procedure in a divorce matter, is not a valid domestic violence protection order, subject to enhancement. To be a valid domestic violence protection order, it must be entered under Chapter 50B, in a domestic violence restraining order proceding, not as an injunction or TRO in other civil forms.

State v. Rollins, (138PA08). Issue presented: does the marital testimonial privilege apply to statements between spouses in public visiting areas of correctional institutions? Answer: no, because there is no reasonable expectation of privacy in such settings, as the privilege only applies to "confidential communications."

Friday, May 1, 2009

Supreme Court slaps medical board


Last week, the NC Supreme Court ruled that the medical board does not have authority over ethics, at least as far as executions are concerned. The Medical Board--following the socratic oath's principle of "do no harm," had ruled it unethical for doctors to participate in executions. Such participation is necessary under NC law of lethal injection.

The Supreme Court, in a 4-3 decision, struck down the medical board ethics ruling, deciding that doctors, who have a long history of managing their own ethical principles, are hamstrung when it comes to executions. The Medical Board is powerless to discipline those doctors who participate in executions.



This opens a path to renewed executions in NC, which haven't occurred in nearly two years. All that is remaining is a Wake County Superior challenge to the administrative procedure that the counsel of state used in creating the current execution protocol. A number of important reforms are moving through the state legislature. Hopefully, they will be in place to protect the unjustly sentence, before NC begins killing again.

Click here to read the full decision.