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


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.