Monday, December 27, 2010

NC Court of Appeals Criminal Decisions, December 21, 2010


State v. Wilkins. Nash County. Appeal of felony possession with intent to sell marijuana.

Defendant arrested on old warrants during a traffic stop. The officer found a small plastic bag in the defendant's pocket with three smaller bags of marijuana. The total weight was 1.89 grams. The officer also found $1,264. The state indicted the defendant on felony possession with intent to sell.

The Defendant testified that these were 3 "nickel bags," purchased for personal use. He stated the $1,264 was a $264 check he had cashed and a $1,000 recovered cash bond that his mother had given him. He was carrying the cash because he knew he had warrants and wanted to be able to bond out of jail.

Held: Insufficient evidence of possession with intent to sell, remanded for resentencing on the misdemeanor simple possession (i.e. 6-8 month sentence changed to 1-30 day sentence).

Intent to sell can be inferred from the (1) the packaging, labelling, or storing of controlled substances; (2) the defendant's other activities; (3) the quantity found; and (4) the presence of cash or drug paraphernalia.

Applied to these facts:

(3) only 1.89 grams found. Less than 1/2 a pound is not sufficient, alone, to withstand a motion to dismiss. State v. Wiggins (1977).

(1) Packaged in 3 separate "nickle" bags. Division in cases with such a small amount of marijuana (less than $30.00) cannot give rise to an inference of intent to sell.

(4) Presence of cash only is circumstantial evidence if the presence is unexplained. Here, the cumulative evidence was insufficient. If there had been greater weight or other incriminating circumstances, the cash may have been an incriminating factor.

(2) No damning evidence of defendant's other conduct.

State v. Chillo. Pitt County. Appeal of conviction for breaking or entering a motor vehicle.

1) Indictment stated that defendant broke into the car that was the "personal property of D.L. Peterson Trust." For property crimes that require intent to permanently deprive (i.e. larceny, robbery), the state must specifically allege the ability of the owner, if it is a corporate form, to own property. This can be done by using terms like "INC" or by specifically alleging it as a corporate form capable of owning property. Defendant challenges indictment for not specifically alleging that D.L Peterson Trust is capable of owning property. Court ruled that the term "Trust", like "INC", denotes a specific legal entity that is capable of owning property. As such, the indictment was not defective.

2) Motion to dismiss should have been granted as there was insufficient evidence of intent to commit larceny (as alleged in the indictment). When the indictment alleges a specific intent to commit a particular felony, as here, the state must show that felonious intent.

Here, the evidence showed the intent to break into the car was to show a friend how to "break glass." Nothing was actually stolen from the car and the only other evidence was statements defendant made to a friend that he had "went into cars" in the same neighborhood before. All they did was break the window, they didn't go into the car. Conviction reversed.

State v. Crowder. Avery County. Appeal of revocation of probation. Defendant revoked for 3 "violations"-- residing in house with a minor child (written on judgment), that he not "be alone with any minor child," and that he not "socialize or communicate with any minor child" (the latter two weren't on the judgment).

Defendant put on evidence that the minor child lived with a grandmother, but would visit the house. The trial court said "He is not supposed to have any children anywhere around him" and revoked him.

Held: Trial court abused its discretion as the state failed to present evidence of a violation of a valid condition of probation. A standard condition of probation for sex offenders is that they cannot reside in residence with children during the probationary period. 15A-1343(b2)(4). This does not prohibit all contact or visitation with a minor, only living in the same house. As such, there was no valid condition that children couldn't be "anywhere around him."

As to the 2nd two "violations", no evidence that defendant received any notice that those were conditions of probation. As such, they are not valid bases for revocation. Vacated.

State v. Jones. Appeal of conviction of cocaine possession with intent to sell.

The State offered evidence of Officer Tucker who stated he was able to identify the substance as cocaine by visual inspection and admitted a chemical analysts report showing the substance was cocaine, all without objection.

This was plain error. 1) under the 6th Amendment, a report of an analyst cannot be entered without their presence for cross examination. 2) Identification of cocaine by visual inspection is unreliable and inadmissible opinion testimony.

Other Cases.

State v. Capers. Cleveland County. Appeal of 1st degree murder conviction.

No error in admitting evidence that, upon arrest, defendant was shackled. Case law forbids allowing a criminal defendant to appear before a jury in bonds. No similar protection, however, from the jury learning that he was in bonds at arrest.

No error under 403 in allowing testimony of officer who said the defendant said, upon arrest, "if [you] would have waited until twelve midnight that we would have been late, and he said that, yeah, I would have been gone and you would have never saw me again." Flight is admissible evidence of guilt. Defendant argues that this was "an empty boast by a shackled man." Nonetheless, the statements shows consciousness of guilt (like flight) and is admissible.

No confrontation or hearsay problem with a victim's (one who got shot but didn't die) mother testifying that victim told her in hospital that the defendant did it.

The court found that this was an exception to hearsay as a presence sense impression, as it was made less than an hour of the shooting, broadening the presence sense impression exception from a few moments to an hour.

State v. Ford
. Mecklenburg County. Appeal of motion to suppress evidence obtained during a traffic stop.

Sole issue is whether the stop was valid. Officers may conduct a traffic stop if there is "reasonable suspicion to believe the defendant committed a traffic violation." Officers saw a car during patrol at 10:00pm, again a little later, and then a third time at 1:45am. The officers followed the car and the license plate appeared not to be lit and he couldn't read the tag. They turned off their lights to verify that the tag lights were out. Then, they stopped the car and cited the defendant for failing to maintain a properly functioning tag light (and eventually found a bunch of other bad stuff and got him for that too).

Defendant put on evidence from the car rental place that the car was fine when the car was rented and when it was returned. Court held that this didn't directly contradict the officer's testimony. As such, sufficient reasonable basis for the stop.

The court also notes that, while the defendant argues the stop was pretextual, the objective facts, rather than any subjective motivation, is the standard the court uses in making these determinations.

State v. Foy. New Hanover County.

During traffic stop for DUI, officer, with defendant's consent, went to his car to get the defendant's cell phone so that he could call his wife for a ride. While there, saw, in plain view a .357 revolver. The officer then arrested the defendant for carrying a concealed weapon and search the truck, finding open containers, drugs, and other guns.

Issue: Upon finding the 1st gun, could the officer continue searching under Gant.

Under Gant, an officer may search a vehicle incident to arrest "if the arrestee is within reaching distance of the passenger compartment at the time of the search or 2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Here, the Defendant was absent, but under prong #2, the officers had reason to believe that evidence related to the charge of carrying a concealed weapon could be found in the truck (i.e. other weapons, a receipt, or other evidence that can show ownership).

State v. Hernandez. Rockingham County. Appeal of convictions for assault with a deadly weapon with intent to kill inflicting serious injury, attempted 1st degree murder, and armed robbery. Challenge to denial of motion to suppress.

Defendant was a passenger in a car during a New Jersey traffic stop. New Jersey officers observed a car following too closing and making erratic lane changes. During the stop, the officer became suspicious because the men (5 Hispanic men were in the truck) gave conflicting stories of the itinerary, had no luggage for their NC to NY trip, and had no identification or driver's licenses. The driver of the car consented to a search, on a Spanish language form. During the search, they found a loaded gun. All men were arrested and, during further search, evidence of the robbery (wallet, jewelry, firearms) were found in the truck.

NC SBI guys flew up to New Jersey and interviewed the Defendant. Defendant signed a Spanish Miranda Waiver and made incriminating statements. Defendant challenges admission of the evidence and the statements, challenging the search and the Defendant's arrest.

1st, traffic stop was legal, as there was reasonable suspicion to believe a traffic violation had occurred--to wit, following too closely.

2nd, stop must not be unreasonably prolonged. The length of detention must be that necessary to deal with the articulable, reasonable suspicion. A basic rule, is you can't ask to search if the only suspicion is the traffic violation. Here, additional suspicion arose based on the inconsistent stories and lack of identification. The length of stop (up to the consent) was an hour and ten minutes. Defendant argues this was unreasonable. Here, delay not unreasonable since all occupants lacked identification and he could not simply issue a citation and let them go on their way.

As such, there was reasonable suspicion to prolong the stop and ask for the search.

State v. Hunter. Union County. In 1st degree murder case, held motion to suppress confession as involuntary was properly denied.

First, no error in executing a search warrant that had the wrong address listed on it. No problem with police executing a one address, even though the magistrate's order indicates that they could search a different address. This was OK because other designations were sufficient to establish with reasonable certainty what premises are to be searched. The warrant gave specific directions.

Second, defendant's Miranda waiver was valid, despite evidence that he had used crack prior to confessing, as the officers reported that the defendant denied being under the influence and the Defendant seemed cognizant during the interview of the meaning of his words.

Third, sufficient evidence of the aggravating factor "extremely heinous, atrocious, or cruel" where the victim was very old, the defendant took advantage of a position of trust, and the death occurred by stabbing, beating, strangulation, and finally impaling with a golf club in the victim's back and chest.

Fourth, no error in failing to grant mistrial after prosecutor called the defendant a "liar" during closing repeatedly. While clearly improper, they didn't reach the level of prejudice necessary to grant a mistrial.

State v. Paterson. Forysth County. DUI appeal. At trial, Defendant informed the judge that he had fired his attorney and wished to proceed pro se. His attorney had not filed a motion to withdraw. The judge continued the case and then allowed the attorneys to withdraw.

The Judge then went over the Defendant's right to a court appointed attorney and then had him sign a form Waiver of Counsel. Defendant signed the waiver, but did not check the boxes the form required for exactly what he was waiving (either appointed counsel or all legal assistance).

First, the waiver form is not mandatory, as long as there is a record of adequate waiver. The failure to check either box does not render the waiver invalid.

Second, the inquiry for waiver was adequate as the judge explained the charges and potential punishments and informed of the right to counsel, even though the specific colloquy laid out in State v. Moore (2008) was not followed.

Thursday, December 23, 2010

2010 Capital Trials in Review

Death Verdicts
  • Timothy Hartford, Forsyth County, Death (November)
  • Stephen Buckner. McDowell County, Death (November)
  • Andrew Ramseur, Iredell County, Death (June)
  • Michael Ryan, Gaston County, Death (May)
Life Verdicts
  • Edwardo Wong, Catawba County, Life (November)
  • Dexter McRae, Cumberland County, Life (October)
  • Travis Ramseur, Iredell County, Life (September)
  • Carlos Keels, Robeson County, Life (June)
  • Samuel Cooper, Wake County (April)
  • Abdul Shareef, Cumberland County (March)

Other Life Cases
  • Demetrius Montgomery, Mecklinberg County, case declared non-capital during trial by judge due to police misconduct (August)

Tuesday, December 21, 2010

NC Supreme Court Criminal Decisions, Dec. 21, 2010

The Supreme Court only issued one criminal decision today.

State v. Jihad Rashad Melvin, from Onslow County.

In a First Degree Murder case, the trial court failed to instruct the jury that it could not convict the defendant of both 1st degree murder and accessory after the fact to first degree murder. The jury convicted the defendant of both and the trial judge vacated judgment on the after the fact count.

The Court of Appeals ordered a new trial. Read post here.

While murder and accessory after the fact are mutually exclusive offenses, the Supreme Court took away the appellate relief, stating that the error was harmless.

Monday, December 13, 2010

Poll: North Carolinians Question the Death Penalty

A new poll, released today, indicates that a majority of North Carolinian would consider ending the death penalty. These concerns are fueled by concerns over wrongful convictions and the indiscretions of the SBI lab, as well as the enormous cost of the death penalty.

  • 68% of respondents said executions should be halted in light of the SBI findings;
  • 58% opposed death in sentences involving racial bias
  • 64% support life without parole over the death penalty and had doubts about the $11 million a year tab for the death penalty

As reported here, on the Public News Service:

"Mark Kleinschmidt, executive director of the Fair Trial Initiative in Durham [which released the poll], explains the poll results.

'North Carolinians are saying two to one: 'Don't execute anyone until we can be sure that all the evidence was good evidence, and the testing points to the guilty party.'

...In the poll, 80-percent of respondents identified themselves as either moderate or conservative

Advocates for ending the death penalty claim that doing so would save $11 million a year in capital punishment costs to the state. Kleinschmidt explains why it's so expensive."

Sunday, December 12, 2010

SBI cheating leads to dismissal of murder charges in Durham County

In Durham on Friday, Judge Orlando Hudson threw out decade old murder charges against Derrick Allen after it came to light that the SBI hid laboratory reports showing that alleged blood evidence wasn't blood at all.

The blood was key evidence tying Mr. Allen to the crime. The SBI provided evidence to the defense showing initial tests indicating that the substance was blood, but hid more sophisticated, confirmatory testing that showed no blood was present.

SBI agent Jennifer Elwell denied wrongdoing and stated on the stand that she viewed the State as her client, showing her bias. She also stated she hadn't read much of the crime lab audit that targeted her section, despite Attorney General Cooper's public stance behind the audit. This shows that the lab agents aren't being trained on, nor having their behaviors modified due to the audit.

Allen had wrongfully spent over 10 years in jail, maintaining his innocence the entire time.

Will the state seek criminal charges against the SBI agent who stole 10 years of Mr. Allen's life?

Tuesday, December 7, 2010

NC Court of Appeals Criminal Decisions (Dec. 7, 2010)

Reversals and Other Interesting Cases

State v. Johnson.

Insufficient evidence of attempted robbery with a firearm, where no evidence of intent to rob. Defendant came to the victims door with a gun and tried to get in and a firefight ensued. Only evidence offered by the state was that the Defendant came by a few days before, presumably casing the joint. This was insufficient evidence of intent.

Insufficient evidence for felony breaking and entering, as no, based on above, inadequate evidence of intent to rob (the charged predicate felony). Jury verdict of misdemeanor entering (which has no intent to commit a felony inside requirement), stands.

State v. Potts. Appeal of possession of cocaine case, where cocaine was found in a size 8 1/2 Nike shoe.

(1) Officer testified that he knew what defendant looked like based on seeing pictures from prior arrests. Issue not preserved because no proper objection.

(2) Officer testified that another officer told him that the defendant wore an 8 1/2 shoe. Court found that this was offered as corroboration of "anticipated testimony" (that seems like a violation of the rules of evidence anyway, but....). The other officer later testified and did not say that the defendant wore an 8 1/2 shoe. Because this impermissible hearsay was admitted and is prejudicial, the court orders a new trial.

State v. Williams. Conviction for possession with intent to sell cocaine and habitual felon.

SBI analyst testified about the cocaine being cocaine. Turns out, she wasn't the one that performed any of the test and was just reading someone else's result. This violates the 6th Amendment right to confrontation (Crawford).

New trial.

Other Cases

State v. Baker. Appeal of carrying concealed gun and possession of firearm by a felon.

Defendant was spotted on foot near a nursing facility that had been broken into the night before. Officer approached defendant and asked him questions. Defendant smelled of alcohol and was "looking around." The officer did a pat down and found a gun.

The trial court failed to make findings of fact. There were material conflicts in testimony on whether or not the defendant was seized. (The officer turned on his blue lights before approaching defendant, a total of four officers were present (show of force)). The trial court's failure to make findings of fact is thus fatal to the validity of its denial of the defendant's motion to dismiss.

Remanded for findings of fact.

State v. Bedford. Appeal of 1st degree murder conviction.

No error in failing to instruct on 2nd degree murder. Defendant was high on crack when he hit his wife numerous times with a 2x4, stabbed her, and slit her throat, causing her death. Court did not err in failing to instruct on 2nd degree murder, because ample evidence of premeditation were present--in the brutality of the crime and prior threats--and intoxication alone doesn't negate this.

No error in submitting photographs of the decomposing corpse (the body wasn't found for some time) under 403. These appropriately illustrate testimony of detectives who found the body.

State v. Blackmon. Appeal of convictions for felony larceny and habitual felon. Defendant stole a computer and, because he was a habitual felon, was sentence to 10+ years.

Defendant failed to preserve his motion to dismiss by not renewing his motion at the close of all evidence.

No IAC for this, as there was sufficient evidence for the jury to find the larceny.

No inconsistent verdicts in the jury hanging on breaking and entering, but convicting on felony larceny (that was a felony on the theory that the larceny was committed during a breaking and entering)..

State v. Clark. Appeal of judgment for break and enter motor vehicle, attempted larceny, injury to personal property and habitual felon status.

The indictment charged defendant with breaking and entering a motor vehicle, with intent to commit larceny of the same motor vehicle.

To be convicted of felony breaking and entering a motor vehicle, the defendant must have the "intent to commit any felony or larceny therein." Defendant argues that the "therein" requires the intent to commit a felony or a larceny other than theft of the car, as a theft of a car could be completed not within the confines of the car. Court rejects this argument. No reason a defendant cannot be charged with both felony larceny of a motor vehicle and felony breaking and entering a motor vehicle with the intent to steal the vehicle.

Sufficient evidence for felony larceny in the truck being worth more than $1,000, as the owner and two officers both testified they believed it was worth more than $1,000.00.

State v. Crandell. Defendant and another man had a shootout at a BP. An innocent bystander was shot and killed. Defendant convicted of 1st degree murder.

.32 and .40 caliber shell casings were found at the scene. A .40 caliber pistol was later seized from the defendant and a .32 at the other man's residence.

Both a .40 caliber (11.4g) and a .32 caliber projectile (4.54g) was found in the decedents car. A fragment of 6.2g was found in his head. An SBI lab agent testified at trial that the fragment was consistent with a .38 caliber or larger gun.

1) Sufficient evidence of guilt. Sufficient evidence presented showing Defendant was one of the shooters and was using a .40 caliber. Evidence sufficient on malice, premeditation, and deliberation as the shooting arose from a confrontation at a club, earlier in the evening, and the defendant firing at the other man at the BP first, without further provocation. This is sufficient for premeditation and deliberation--intent that then transfers to the decedent.

2) No error in allowing the lay testimony of a detective about the relative weights of the bullets.

3) No error in allowing SBI expert to testify that the bullet in the decedents head could not have come from a .32, as it was heavier than a 32 and was just a fragment.

State v. Daniel.

Appeal of DWI conviction.

A DWI defendant has a right to pretrial release if "A sober, responsible adult is willing and able to assume responsibility for the defendant." Under State v. Knoll, a DWI must be dismissed if defendant's detention is prolonged in a way that prejudices a defendant's ability to gather evidence.

During arrest, the officers gave defendant's car to a friend of hers, who drove directly to the jail.

Here, defendant was detained nearly 24 hours, even though a friend came to get her within an hour or two of her arrest. The magistrate wouldn't release her to the man, because he had alcohol on his breath and stated that he would only release her to a woman. While the detention was inexcusably prolonged, the court found there was no prejudice, because her BAC was .17, she said no when offered to contact an attorney, and her friend was given access to her and able to observe her during those critical post-arrest periods.

Judge Elmore Dissented:

The Defendant's friend was a sober, responsible adult, evidenced by the officers releasing the car to him. The magistrate refused to release her to her friend solely on the basis of his gender, not his condition. This failure to release caused irreparable prejudice, as any opportunity to gather evidence that she was not legally drunk was gone by the time she was released the next day.

State v. Dobbs. Defendant convicted of possession with intent to sale a sch. III substance (hydrocodeine), sale of a schedule III controlled substance, and trafficking in a sch. III controlled substance. Defendant sold 8 hydrocodeine pills (a prescription drug) to an police agent.

Court found there was sufficient evidence to prove trafficking by sale or delivery of 4-14g of hydrocodeine (8 pills. Yes, 8 pills is "trafficking"). Defendant was sentenced to a total of 70-84 months in prison on the 3 counts arising out of the one sale.

State's evidence rested on a lab analyst who weighed the pills, checked them against the book, and conducted scientific tests of one of the pills. Defendant argues that this was insufficient, since she didn't perform scientific tests on all the pills. Defendant did not cross on the sufficiency of the sample or argue that it was insufficient. As such, the argument is dismissed. Even if he had, the court went on to find this was a sufficiently reliable sample.

State v. Dubose. Appeal of conviction for conspiracy and for firing a gun into occupied building.

Facts were that defendant shot at another student outside a school (apparently to scare him as part of gang activity) and the bullets hit a brick a column of the school.

Sufficient evidence of conspiracy where defendant was with others, argued about who was going to shoot the gun, and all went together to do the shooting. Defendant arguments there was no evidence of intent to fire into occupied property, as the victim was standing outside the building. Caselaw establishes that a bullet going into an exterior wall is adequate for shooting into occupied property. Because the victim was standing near the building, there was a substantial likelihood that the bullet would enter the wall. As such, there was adequate evidence of a conspiracy to fire into occupied property.

The court did err for making a finding of the aggravator of gang activity, as there was no notice of this as aggravating and the sentencing was made outside the defendant's present (when the court drafted the judgment). Remanded for re-sentencing

State v. Mackey. Appeal of assault with deadly weapon and discharging a weapon into occupied property.

Held: (1) State failed to give the defendant proper notice of intent to prove aggravating factors for sentencing. The state must give written notice at least 30 days prior to trial. During plea negotiations, the state sent a letter that is not a part of the record. As such, insufficient evidence of the notice. (But noting that a letter could have been adequate notice). Remanded for resentencing.

(2) Because defendant was a passenger in a car and asserted no possessory interest in the vehicle or its contents, he had no standing to challenge the legality of a search.

State v. Treadway. Appeal of conviction for 1st degree sex offense.

(1) No error in admitting testimony of child's grandmother that the child told her she was molested, as it was admissible for the non-hearsay purpose of explaining the grandmother's subsequent conduct--telling the child's parents so medical treatment could be obtained. Further, these statements corroborate the child's trial testimony.

(2) Social worker interviewed the victim and diagnosed the victim with "sexual abuse." This was improper, as there was no physical evidence of abuse and such testimony essentially means, she talked to the victim and believes her. She also testified that the child's behavior was "consistent with a child who had been sexually abused." That was an appropriate, permissible statement. Because of this and other strong evidence, the admission of the "sexual abuse" diagnosis was not plain error.

(3) The indictment specifically alleged that the sex offense occurred by digital penetration. The jury instruction did not specifically include a requirement that the jury find digital penetration. The trial court may only instruct on sex acts supported by the evidence. The fact that the trial instruction was on digital penetration, as well as other sex offenses, was not error.

(4) Satellite-Based Monitoring: the court incorrectly found that 1st degree sex offense was an aggravated offense (mandating lifetime monitoring). (Aggravated offenses under 14-208.6(1a) required the child to be under 12, 1st degree sex offense allows children under 13). Remanded for re-sentencing on the other possible SBM grounds.

Sunday, December 5, 2010

Only Words?

An article in the N&O today details the lack of progress in cleaning up the SBI.

The bad news from the audit of the serology department of the crime lab should spark a complete audit of the entire lab. Instead, there's been a lot of noise and not much happening. Will serious audits and changes occur? Will the new Republican legislature put pressure to fix this, when "bad government" is affecting the least powerful?

Read the article here.

Wednesday, December 1, 2010

Life in Albert Ramos case

Scotland County, North Carolina.

On Monday, Albert Ramos pleaded guilty, at the end of jury selection, to two life sentences. At trial, he faced the death penalty.

The story is reported here.

Tuesday, November 30, 2010

DNA Tests Disprove Key Evidence in Texas Execution Case

OK, I know it's out of state, but I received this interesting email from the Innocence project. Thought I'd share it.

New DNA tests show that Claude Jones was executed a decade ago in
Texas based on false physical evidence that officials declined to test
before his execution.

Jones always maintained his innocence of the murder for which he was
executed, and the new test results prove that a hair allegedly tying
him to the crime scene was not his. Before his execution, Jones
requested a 30-day stay from then-Governor George W. Bush so he could
seek DNA testing on the hair. A memo from the Texas General Counsel's
office recommended against the stay and failed to mention that Jones
was seeking DNA tests. Bush denied the motion, and Jones was executed
on December 7, 2000.

In a Wall Street Journal op-ed on Saturday, Innocence Project
Co-Director Barry Scheck wrote that Jones' execution "never
should have happened" and goes on to say that the injustice Jones
suffered highlights the need for a national criminal justice
commission to examine and address issues including the death penalty
and the underlying causes of wrongful conviction.

Read more about the Jones case

Read Barry Scheck's op-ed

Monday, November 29, 2010

Repeal of Habitual Felon Law Could Save Budget

The new Republican North Carolina legislature has a daunting test ahead of it-- a budget shortfall of billions and a promise not to raise taxes.

Under NC's habitual felony law, persons convicted of their 4th felony are sentenced as class C felons and all sentences must be run consecutive. For serious offenders, this doesn't have much effect, but in low level cases, the sentences can be extreme.

For example, if someone is convicted of two counts of simple possession of cocaine, a class I felony, for even someone with a serious record, they would be presumptively be sentenced to two terms of 7-9 months, which the judge could run concurrenlty or consecutively, depending on the facts of the case. Under the Habitual felon law, that sentence becomes 134 to 168 months-- for a drug addicts possession of a few grams of crack. The costs of this policy are enormous and benefits are unclear.

It costs $27,134 to house someone in prison for a year. Since this law went into effect, prison roles have increased from 27,000 to 41,000-- an annual increase in cost from $729 million to $1.1 billion.

Last year, an N&O story estimated that this program has cost North Carolinians over $1.5 billion.

It's time to review this policy and make it not apply to lower level felonies, classes F, G, H, and I. Reserve these severe and extremely expensive punishments for those who commit serious violent crimes. Incarcerating low-level felons and drug addicts simply isn't worth the cost.

The legislature is committed to making cuts. Will they end music programs at high schools? Stop funding NC's world class college education system? Further destroy the mental health system? Or reduce the cost of a bloated prison system?

Friday, November 19, 2010

Hartford sentenced to die

This afternoon, a Forsyth County jury sentenced Timothy Hartford to die for what has been dubbed the "Meals on Wheels Murder."

Wednesday, November 17, 2010

NC Court of Appeals Criminal Decisions, November 16, 2010

Reversals and Other Interesting Issues

State v. Charla Dean Davis. Gaston County. Defendant appeals convictions of DWI, reckless driving, felony hit and run, and 2d murder. Drunk driver in a red SUV hit a number of pedestrians as he went over a bridge. A red SUV, with pieces missing that were similar to those at the scene, were found at a man's house who told police that the defendant was driving the car and told him she was side-swiped. Police located defendant the next day and she was in disarray and smelled of alcohol. Defendant confessed to hitting something, but said she didn't stop because her license was revoked and she had one more alcohol class left to get her license back. She admitted to drinking vodka that night. No breathalyzer was conducted. Sentenced to 276 + 42 + 10 months.

First, court erred in allowing a state expert to testify on his opinion of Ms. Davis' blood alcohol level based on "retrograde extrapolation." The expert used this technique based solely on the officer's statement that he smelled alcohol on her breath in the morning and an assumption that no alcohol was consumed after the accident. Held: this is unreliable crap and is inadmissible under 701 and Howerton, NC's expert standard--which is notably more lax than the federal Daubert standards.

This was prejudicial, as the only evidence the state of recklessness for the 2d murder and reckless driving was the alleged impairment.

Second, error under 403 to admit 3 prior DWI convictions that were 18 and 19 years old. Their admission was prejudicial. The DWI from 2 years prior, however, was admissible.

New Trial on 2d murder, reckless driving and DWI. Affirmed on felony hit and run.

State v. Nakia Nickerson. Orange County. Appeal of conviction for possession of stolen goods and habitual felon.

Defendant was stopped in a stolen car. He told the officer it wasn't his car and he could search it. The officer found a gun and the defendant said, not my car, not my gun. Told the officer it was a friend's car, who was too drunk to drive. Said he dropped the friend off at Baldwin Park and kept the car. The officers went to Baldwin Park and couldn't find the defendant's friend. Indicted and convicted for possession of stolen goods.

1) Trial court erred in refusing to instruct jury on lesser included offense of unauthorized use of a motor vehicle. Unauthorized use of a motor vehicle is a lesser included offense of possession of stolen goods.

Possession elements are: possession, of stolen property worth $1000, with knowledge or reasonable belief it is stolen, and with a dishonest purpose. Unauthorized use elements are taking, vehicle, without express or implied consent of owner.

Here, the common elements are: Possession of property (taking=possession) and stolen property (stolen property=property taken without express or implied consent of the owner).

Additional elements that elevate to felony are knowledge that the car is stolen and dishonest purpose.

Here, defendant's statement and other evidence tends to negate the heightened Mens Rea requirement-- knowledge that stolen and dishonest purpose-- rather than just a blanket denial. For these reasons, he was entitled to instruction on the lesser included misdemeanor.

New Trial.

State v. David Franklin Hurt. Caldwell County Appeal from 2d murder conviction. Defendant appeals aggravated sentencing based on jury's finding that the murder was especially heinous, atrocious, or cruel.

Held: Defendant has a right, under Blakely, to confront witnesses against him at a sentencing trial under the 6th Amendment. Applies to all sentencing proceedings where a jury makes a determination of facts that, if found, increase the defendant's sentence beyond the statutory maximum. Trial courts admission of hearsay during the aggravation phase constituted error.

Remand for new sentencing hearing.

Other Cases

State v. Jerry Wayne Sanders. Carteret County. Appeal of conviction for assault with a deadly weapon inflicting serious injury (AWDWISI) and conspiracy to commit AWDWISI.

Sufficient evidence for conspiracy here. Defendant and a group of his family members went to one persons house to assault him. After they were told to leave, the rowdy group drove away and an on-looker chastised them. They then stopped their car, got out, and beat him up. These facts, taken together, show the men formed an implied agreement, however impulsively, to assault the onlooker. The jury did not use the wrong conspiracy--the agreement to beat up the first guy--to convict for the spontaneous assault. Rather, there was sufficient evidence to show that this group assault was also the product of a conspiracy.

Monday, November 15, 2010

Jury Selection Continues in Scotland County Case

In Laurinburg, jury selection continues in the capital murder trial of Albert Ramos.

Ramos is charged with the murder of his wife, Sanjuana Ruiz, and Ronnie Ruiz, a local business owner. No press has been reported on this case in over a month. Last story I found is here.

Friday, November 12, 2010

Timothy Hartford found guilty

In Forsyth County yesterday, Timothy Hartford was found guilty in what's been dubbed the "Meals on Wheels" murders. Hartford was convicted of killing an older woman, Robert Denning, in a home invasion and then killing Anne Magness, a meals on wheels worker who arrived during the crime to serve Mr. Denning.

The jury will begin hearing evidence today on whether Mr. Hartford should die in prison or die by lethal injection.

Monday, November 8, 2010

Life for Wong, Death for Buckner

In Catawba County, the jury in Edwardo Wong's case is hopelessly deadlocked. Mr. Wong was convicted of the 1st degree murder of a State Highway Patrol office. The jury was deadlocked 6-6 on sentencing after deliberating for over a week. The State never offered Mr. Wong a plea and moved forward for death at the victim's widow's request. After over 8 weeks of trial testimony and 100s of thousands of dollars of money, the judge issued a sentence of life without the possibility of parole.

In McDowell County, a jury sentenced Stephen Bucker to death for a triple homicide, after less than three days of deliberation. Jury selection in that case began in mid-September. Buckner was convicted of killing his live-in girlfriend, his daughter, and a 14 year-old child who also lived in the home. The jury returned a death sentence on two of the counts, and life on one.

Friday, November 5, 2010

NC Supreme Court Rules in State v. Waring

Today, the NC Supreme Court issued one criminal decision in the case of State v. Byron Waring.

Byron Waring was sentenced to death in July 2007 in Wake County. Byron Waring, a black man, was convicted for the rape and murder by stabbing of a white woman. Defendant had a cognitive disorder and a schizotypal personality disorder, as well as borderline intellectual functioning. The jury found the presence of three aggravating factors: committed during a rape; for pecuniary gain, and that the murder was especially heinous, atrocious or cruel. The jury found 4 statutory mitigating factors: that it was committed under duress (Waring's co-defendant was the leader), acting under the domination of another person, capacity to conform his conudct to the law was diminished, and that he aided in the apprehension of his co-defendant. The jury also found in mitigation that the defendant suffered from borderline intellectual functioning and cognitive impairments. Nonetheless, the jury found that the aggravators outweighted the mitigators and sentencing Mr. Waring to death.

First, no error in failure to suppress his prior confessions. Found that Waring voluntarily went with police and voluntarily was questioned. Thus, no interrogation and no Miranda problem.

Second, while the state used its peremptory challenges to exclude blacks from the jury, the court found that there were legitimate bases for such use, as one juror gave questionable support to the death penalty and another because the prosecutor was "concerned that she didn't watch the news." The state struck 50% of eligible black jurors. The court found that this number wasn't so high as "to suggest a systematic effort" to exclude blacks.

Court also reviewed other issues and found no error.

Of interesting note, this is yet another case where blacks were struck at a much higher rate than white and no finding of Batson error. While every litigant knows that race is taken in account in jury selection, still no appellate court has ever granted Batson relief.

No prima facie showing for Batson challenge.

Wednesday, November 3, 2010

Election 2010

Election Results are in and the Republicans will be overtaking the General Assembly. What does this mean for criminal law?

1) Indigent Defense Services budget. Will the Republicans reduce the budget of IDS? Over the past twenty years, NC has become a provider of some of the best indigent defense in the country, due to the establishment of the independent IDS commission and the Capital Defender's office. Budgetary reductions lead to more qualified lawyers leaving the indigent appointment lists, overworked public defenders, and lower quality criminal defense. Will the Republicans protect the indigent defense system or reduce the quality of representation?

2) Criminal Rights Reform: In the past 20 years, the legislature has passed significant criminal defense reforms, all aimed at preventing wrongful convictions. They passed open-file discovery, IDS commission, the innocence commission, videotaped confessions in murder cases, fair line-up regulations. Will the Republicans continue to push the envelope and take seriously ensuring that innocent persons aren't in our jails?

3) Death Penalty. Significant reforms-- bars to executing the mentally retarded and persons sent to death row in counties that have demonstrated history of racial discrimination in capital process-- were passed in recent years and last session the GA considered seriously a bar to executing the severely mentally ill. Moreover, there has been a de facto moratorium since 2007 that could be legislatively taken away, resulting in immediate executions. Will the Republicans take up the mantle of ensuring fairness in capital sentencing and only execute the worst of the worst?

4) Sentencing. Democrats and Republicans alike have routinely ramped up sentencing for non-violent and violent offenders, to the point that our jails are overcrowded and expensive. Will the Republicans insistitute significant reforms to allow that money to be spent on schools or will the exacerbate the problem, mindlessly increasing sentences across the board and further expanding the enormous prison bureaucracy?

Time will tell.

Tuesday, November 2, 2010

NC Court of Appeals Criminal Decisions, November 2, 2010

On November 2, 2010, the North Carolina Court of Appeals issued five decisions for publication.

State v. Banner. Defendant was arrested on an old warrant that, due to clerical errors, was erroneously issued. During search incident to arrest, drugs were found. Held: Underlying warrant was not invalid, as it was based on an unresolved failure to appear. The fact that a clerk as failed to recall the warrant after learning it was erroneously issued does not invalidate it. (Here, the defendant received the FTA because he was in jail in another county on unrelated charges and the Department of Corrections had contacted the clerk and informed them of such, assuming the FTA would be recalled).

State v. Bordeaux. State appeal of suppression of confession in a robbery case. Defendant's interrogation was videotaped. During the interrogation, the officers made threats to connect defendant to an unrelated murder case and made promises and threats that he needed to cooperate if he "wanted any chance to live a normal life." Such questioning was intended to overbear the defendant's will and, although he was warned and waived Miranda, the confession was nontheless involuntary. Upholds suppression.

State v. Boyd. No error in using DNA sample taken from defendant while in Ohio. Defendant alleged he consented to taking the blood due to officer's deceit, as officers never told him he was under investigation for rape. Consent must be freely and voluntarily given. There is no requirement that it be knowing (i.e., unlike confessions, officers don't have to inform you of your right to refuse, your right to a lawyer, etc.). The fact that the defendant was not told the blood was wanted in a rape investigation does not matter.

No error in failing to replace a juror who sent out a note saying she thought the defendant's accent was "fabricated" in some trial evidence. This merely suggests the juror was weighing evidence/credibility, not doing anything inappropriate.

Error in sentencing as prior record sheet included a conviction that occurred after this case (unclear if this was a typo on the sheet). But, since the sheet was the only evidence presented, those points are no good. Remanded for resentencing.

State v. Szucs. Defendant appeals felony larceny, possession of stolen goods, and breaking and entering convictions, where property stolen was electronics and loose change.

Sufficient evidence presented where his truck was found parked in the driveway, a man matching his general description holding electronics was seen; the man dropped the electronics and jumped the fence; a police dog tracked him, then lost the trail near Thermal Rd.; officer noted fresh marks in the mud, defendant was found, muddy, on thermal road; defendant had a leatherman tool in his possession; had $30.00 in change; and roommate found with an electronic device.

No plain error (under 403) in police statement that defendant was identified using mug shots.

Error for entering judgment on both felony larceny and felony possession of stolen goods. Cannot enter judgment on both, if it's the same good. Arrest judgment on possession of stolen goods.

State v. Yonce. Appeal of finding of willful probation violation. Defendant's appeal was untimely.

Jury Begins Deliberating in Wong Case

The jury began deliberating on whether Edwardo Wong should receive a sentence of life or death in a police officer shooting case.

Closing arguments ended this morning and the jury was charged and sent to begin deliberating around 4:00pm. The jury was later sent home for the evening. They are set to resume deliberations tomorrow morning.

Murders Decline

Interesting op-ed by UNC Professor Frank Baumgartner (left) from the News and Observer about how the murder rate continues to decline, despite 3 years with no executions.

Interestingly (and despite the death penalty's claimed deterrent effects), the murder rate has continued to decline for years as the death penalty has been used less and less frequently.

Read more here.

Wednesday, October 27, 2010

Two Families Struggle

Good article here on the difficulties faced by the families of the victim and the family of convicted killer Edwardo Wong. Wong's mothers issued a tearful apology to the victim's wife, Cindy Swan.

Wong's case is currently in sentencing and a jury will soon determine whether he will die by natural causes in prison or by a needle.

Four other capital trials are on-going in the state:

Stephen Buckner in McDowell County (in trial)
Albert Ramos in Scotland County (in jury selection)
Anthony Pinkston in Robeson County (in jury selection)
Timothy Hartford in Forsyth County (in jury selection)

Earlier this month, Dexter McRae was sentenced to life without the possibility of parole at the end of his capital trial in Cumberland County.

Friday, October 22, 2010

NC Court of Appeals Criminal Decisions (10/19/2010)

Reversals and Other Interesting Cases.

State v. Nabors. Drug case should have been dismissed due to insufficient evidence.

Only evidence that drug was cocaine was testimony based on visual observations. Proof that substance is illegal drug must be with expert testimony "based on a scientifically valid chemical analysis." Vacated.

Other Cases.

State v. Dye. Appeal of conviction of statutory rape, rape, and incest. Defendant appeals, arguing state pediatric expert testimony was improper and mistrial should have been granted.

Expert testified that the medical evidence was "consistent" with the child's disclosure of sexual assault. Failed to preserve whether this improperly opined on a witnesses truth.

Expert testified that there was little "secondary gain" (i.e. benefit to the child) for the sexual disclosures. Defense argues that this was plain error and an opinion on the truthfulness of the witness. Not plain error.

Finally, during the defense closing, the victim interrupted and said, "You shut up, how dare you say I'm unbelievable" etc. Defense at trial told the court it was not moving for mistrial. No error in court's failure to intervene ex mero motu.

State v. Gabriel. Appeal of 1st degree murder conviction.

Instruction on acting in concert was supported by the evidence. The fact that the co-defendant committed all the acts constituting underlying crimes does not mean no acting in concert instruction is impermissible. All that is required to be guilty under theory of acting in concert is presence and a common plan, even if the co-defendant commits all the criminal acts.

State called a witness Brown, who denied talking with the defendant and telling him to bring a gun, then impeached him (including putting in transcript of prior statement) with his prior statements saying that the he did call the defendant and ask him to bring a gun. HELD:
  1. This was not an improper proving up of a collateral matter (you can't prove up collateral matters with prior inconsistent statements). A matter is generally considered collateral if it doesn't relate the crime and doesn't impeach in any way other than that it is contradictory. Here, the matter was non-collateral (whether he called and told Defendant to bring a gun). As such, it comes in.
  2. No violation of rule 607. Under rule 607, you cannot call a witness and, under the mask of attacking credibility, put in otherwise hearsay statements. Defense argues that, because prosecutor was not surprised, he couldn't put in these statements under Rule 607. The Court distinguished prior, similar cases, on the very thin ground that in this case, the court issued a limiting instruction and that the evidence was important to the state's case, and there was no evidence that the state already knew the witness would not cooperate.
  3. No 403 violation.

State v. Ross. Appeal of conviction for delivery of counterfeit controlled substance and habitual felon. Defendant engaged in hand-to-hand sale of a "20", which the detective informs us is a street term for a $20 crack rock, which turned out to be a white rock-like substance that was not cocaine. Defendant was sentenced to 107 months minimum (because of the habitual felon status). (That's right, nearly 10 years for selling a fake $20 crack rock to a cop.)

Jury sent out 3 notes telling the judge they were hung-- 2 of them saying they were hung at 11-1 and each time noting that this was "final." Finally, judge went into jury room and asked foreman, in front of jury, if they were making progress. He said, "little" and then other jurors said, "none." Judge kept sending them back after telling him the length of their deliberations was in his discretion (1st time), the Allen charge (2nd time), and nothing (3rd time). No abuse of discretion.

Court noted that "we have difficulty imagining circumstances in which it would be appropriate for the trial judge to enter a jury room during deliberations..." So the court "admonishes" the trial judges not to do that, but essentially found no error (perhaps imagining a circumstance where it was appropriate?)

State v. Williams. After conviction for indecent liberties with a minor, court ordered defendant to enroll for life in satellite based monitoring, on ground that he was a recidivist. While some of the courts finding were not supported by evidence, the defendant still meets the criteria for enrollment (sexually violent offense and classification as recidivist).

State v. Wilson. Defendant, while being arrested on warrants, resisted. He was tasered, but it failed, then pepper sprayed. He got the officers gun away from him and shot (and missed him). He was convicted of assault on an LEO with a firearm, possession of a firearm by a convicted felon, and violent habitual felon. He was sentenced to life without parole. Defendant represented himself at trial.

1) No plain error 403 or 404(b) violation for telling jury about warrants officer was trying to serve during incident. Generally, prior bad acts can't come in to show defendant's bad character unless they are substantially similar or relevant to some other part of the case. Here, the warrants explained the basis for the confrontation and were a relevant, necessary part of the story.

2) No plain error in admitting the internal affairs investigation that found no wrongdoing by the officer in macing/tasing the defendant., in part due to overwhelming evidence of guilt.

Rule #1: When you're facing life without parole, don't represent yourself.

Thursday, October 21, 2010

GOP Sends Out Misleading Mailing on the Racial Justice Act

The GOP has sent out a mailer attacking Rep. Holliman of Davidson County, making the absurd claim that the Racial Justice Act, which Holliman supported, would free convicted killers.

The statute, on its face, provides that persons on death row who can demonstrate racial discrimination by the state at the time of their sentencing can have their sentence converted to life without the possibility of parole.

Opponents have launched this unfair attack, making spurious claims clearly contradictory to the act itself.

The basic allegation, that Holliman is trying to undermine the death penalty, is especially absurd because Holliman's daughter Suzi was kidnapped, raped and murdered in 1985 when she was a 16-year-old high school senior. Holliman witnessed the execution of her murderer in 1998. Hard to imagine that Holliman is an opponent to the death penalty. Rather, it shows that even some death penalty supporters don't want their death penalty infected with racism. But I guess the GOP has never been terribly concerned about racial justice.

Rep. Holliman has demanded a retraction and apology. Hopefully the citizens of Davidson County won't be improperly influenced by this baseless smear.

Read more here or here or here.

NC Court of Appeals Eviscerates the Eyewitness Identification Reform Act ("EIRA")

On Monday, in State v. Rawls. the Court of Appeals handled an appeal of a felony breaking and entering conviction. Defendant challenged an in court identification, as the procedures for the out-of-court ID violated the Eyewitness Identification Reform Act (15A-284.52) "EIRA". Court found no error.

Due to common problems of misidentification in criminal cases, the EIRA established specific procedures for conducting line-ups and photo arrays prevent bias and make sure those procedures weren't unduly suggestive. In Rawls, the Court found that the EIRA didn't apply to show-ups (think line-up, but with only one person present)--the most suggestive possible form of ID. In other words, the cops take the defendant, likely in handcuffs, and say to the witness: is this the guy?

In so doing, the COA has effectively eviscerating the value of the EIRA. The blame for this, however, is properly at the legislatures feet. Show-ups are a well known, common ID problem and the legislation was vague enough that the court had wiggle room not to apply it to show ups and--as we all no--if the COA can find any reasonable way to deny relief to a defendant, it will.

No judges dissented.

To NC General Assembly: FIX THIS! No more show ups.

Friday, October 15, 2010

NC Supreme Court Decision, October 8, 2010

The court issued landmark decisions in the area of Satellite-Based Monitoring of sex offenders, already discussed. It also issue the following decisions:

State v. Mumford. Reversal of court of appeals.

Jury found the defendant guilty of felony serious injury by vehicle, but not guilty of the lesser included offense of DWI. The court found that this was not fatal because it was not legally contradictory, "merely inconsistent."

To invalidate a verdict, the verdict must be inconsistent and contradictory. Inconsistency is OK, as long as sufficent evidence existed to support the verdict. Only mutually exclusive verdicts (i.e. verdicts that the nature of the offense precludes guilt of the other offense) require reversal.

E.g.: In State v. Speckman, the jury found the defendant guilty of both embezzlement and obtaining property by false pretenses. 326 N.C. at 577, 391 S.E.2d at 166. This Court found the two crimes to be mutually exclusive, stating: "[T]o constitute embezzlement, the property in
question initially must be acquired lawfully, pursuant to a trust relationship, and then wrongfully converted. On the other hand, to constitute false pretenses the property must be acquired unlawfully at the outset, pursuant to a false representation. This Court has previously held that, since property cannot be obtained simultaneously pursuant to both lawful and unlawful means,
guilt of either embezzlement or false pretenses necessarily excludes guilt of the other. . . . [U]nder our law, a defendant may not be convicted of both embezzlement and false pretenses arising from the same act or transaction, due to the mutually exclusive nature of those offenses."

State v. Whittaker. N.C.G.S. 14-415.1, which prohibits convicted felons from possession firearms in any location, is does not violation the ex post facto clause and is not a bill of attainder. Finds that the firearm rule is regulatory, not punitive.

Per Curiam Decisions and Other Dispositions:

State v. Cruz. Per curiam affirmed. See post on COA opinion here.

State v. Hinson
. Per curiam reversal, for reasons stated in dissenting opinion. See post on COA opinion here.

State v. Mello. Per curiam affirmed. See post on COA opinion here.

State v. Singleton. Digged.

Edwardo Wong Found Guilty

Thursday, the jury found Edwardo Wong guilty of first degree murder. The sentencing trial began this morning.

Read more here.

NC Supreme Court Rules: Satellite Based Monitoring: No Ex Post Facto Problem.

Click here to read prior post on the workings of SBM.

In State v. Bowditch, the NC Supreme Court today ruled that Satellite-based monitoring of sex offenders, ordered on cases prior to the enactment of the SBM law, does not violate the ex post facto clause, as the purpose of the program is not punitive in purpose or effect, but rather a regulatory scheme.

Justice Hudson dissented, joined by Parker and Timmons-Goodson, on grounds that SBM has marginal effectiveness and thus is "excessive in its purpose"--one of the grounds necessary for establishing a regulatory scheme.

The court also, per curiam, with the same dissenters, resolved 4 cases on the same grounds:
State v. Hagerman, State v. Morrow, State v. Vogt, Jr., State v. Wagoner.

Will post on the other decisions soon.

Wednesday, October 13, 2010

NC Court of Appeals Criminal Decisions, October 5, 2010


State v. Nakia Nickerson. Appeal of possession stolen goods and habitual felon convictions.

Facts: Defendant was found driving a stolen car. When stopped he said, "this isn't my car, you can search it." Told the officer it was a friend's car, who was too drunk to drive. Defendant requested instruction on lesser-included unauthorized use of a motor vehicle.

Felonious possession of stolen goods requires proof that: (1) possess personal property; (2) worth more than $1,000, (3) which is stolen, (4) having reasonable grounds to believe it is stolen and (5) acts with dishonest purpose.

Misdemeanor unauthorized use of motor vehicle is (1) taking a motor vehicle (2) without express or implied consent of the owner.

Here: the first element of each is possessing another's property. The "without consent" is the same as "something is stolen." As such, unauthorized use is a lesser included of felony possession of stolen goods--if the state fails to prove the heightened mens rea requirements (reasonable grounds to believe stolen and acting with dishonest purpose). Here, defense statements to police created contradictory evidence on the higher mens rea. As such, court erred in failing to instruct on the lesser included. New trial.

Other Cases

State v. James Junior Blue. Appeal of 2d rape, robber with dangerous weapon, and 1d murder convictions. Defendant came to his grandmother's house, hit her with a pot and a piece of wood and taped her mouth, took money from her wallet to buy drugs, raped her, then killed her.

Sufficient evidence for conviction of 1d murder, despite evidence that defendant was on crack and alcohol at the time and that the murder occurred under passion. State put on defendant's confession that he decided to kill the decedent, contemplated whether he would get caught, and then proceeded. Intoxication is an issue for the jury. This is sufficient evidence.

Sufficient evidence for robbery, even though defendant stated that his grandmother would have given him the money if he'd asked.

No corpus delecti problem for the rape conviction. Under corpus delecti, a defendant cannot be convicted where the only evidence of the crime is his confession. Here, in addition to the confession, there was physical injuries consistent with rape and the presence of sperm found in the victim.

Defendant challenges testimony of Dr. Butts, who testified and gave opinion as to cause of death by reviewing notes of Dr. Trobbiana, who actually performed the autopsy, under the 6th Amendment. This is not a Melendez Diaz / State v. Locklear problem because Dr. Butts was present and personally participated in the autopsy, even though Dr. Trobbiani was the lead.

No problem using short-form indictments for first degree murder, under clear precedent of State v. Allen.

State v. Felicia Clagon and Kristin Wilkins. Appeal of burglary conviction. Burglary is defined as breaking and entering another's residence, at night, with the intent to commit a felony inside. Indictment for burglary is not defective if it does not list what felonious intent the defendant had upon breaking and entering. Here, defendant's intent to commit AWDWISI inside was sufficient for burglary conviction.

Also, co-defendant Wilkins was found guilty under an acting in concert theory. The state did not have to prove that Wilkins has the same specific intent to commit AWDWISI as Clagon to obtain conviction. Rather, her assistance in committing the entry is all that is required for acting in concert. If crimes are foreseeable outgrowth of the common plan, they are chargeable to all participants--regardless of their specific mens rea.

State v. Dennis Wayne Shaw. Defendant entered an Alford plea to second degree murder. Appeal on sentencing issue. During sentencing, the court made statements that the defendant was originally charged with premeditated first degree murder and that the state made a "significant concession" in allowing him to plead to second degree murder. Defendant argues that the court improperly used this as the basis for non-statutorily aggravating the sentence (there was proof of some mitigating factors and stipulation to one aggravating factor).

The Court held that these statement were simply collateral and in response to statements of defense of the defendant's good character and were not improperly considered as aggravators.

State v. Mark Daniel Terry.

1) Defendant made statements to his wife, inside the sheriff's office, that were recorded by surveillance. Held: no reasonable expectation of privacy inside sheriff's office, where cameras and recording devices were apparent, thus no marital privilege.

2) No "knock and announce" problem. When executing a warrant for drugs, the time between knock and announce and entry is shortened due to heightened destruction of evidence concerns.

3) Sufficient evidence to submit constructive possession to jury. To find someone guilty on constructive possession, where drugs are found in an area not exclusively the defendants, state must show access plus additional "incriminating circumstances" that link the defendant to the drugs. Defendant's statement to his wife that, "I'll tell them it was mine" was a sufficient incriminating circumstance to prove constructive possession.

4) Failure to preserve challenge to SBI agent identifying pill as methadose by visual examination only.

Monday, October 11, 2010

Wong Trial Update

The Edwardo Wong case, currently being tried in Catawba County after it was moved from Haywood County, is nearing the end of the guilt phase. If convicted of 1st degree murder, the jury would then move into a second phase to decide whether or not to impose the death penalty. The defense theory in the case is that, due to Mr. Wong's traumatic brain injury, he was not capable of forming the requisite intent for 1st degree murder and is thus only guilty of 2nd degree murder.

Read more here.

Monday, September 27, 2010

Jury returns life verdict in Fayetteville case

The jury just returned a life verdict in the case of Dexter McRae. Earlier, the same jury found him guilty of 1st degree murder.

Under the verdict, Mr. McRae will spend the rest of his life in prison, without possibility of parole.

Friday, September 24, 2010

Jury finds Hare guilty

In the non-capital murder case of Ryan Patrick Hare in Wake County, the jury deliberated today on whether he is guilty of the 1st degree murder of Matthew Sillman.

The case involved 4 co-defendants (pictured), all under the age of 18. The state alleged that the group conspired to kill the Mr. Sillman, in large part over relationship issues. Mr. Hare contended it was an assisted suicide.

The jury found him guilty and he was sentenced to life without the possibility of parole.

Read more here.

Thursday, September 23, 2010

NC Court of Appeals Criminal Decisions

Reversals and Other Interesting Issues

State v. Dennis Blackwell. Appeal of conviction for cocaine possession. Was not given notice of state's intent to use lab reports to prove it was cocaine. New trial.

State served notice on a prior lawyer before he was appointed and never gave it to the retainer lawyer who took over the case 2 days after the appointment. When the notice was served on the prior attorney, he was not yet the attorney of record.

Under 90-95(g), the state must notify of it's intent to use lab reports (in lieu of live testimony) 15 days before trial and defense must object 5 days before trial, otherwise it can come in. Here, notice wasn't given 15 days before (because given to wrong person) and the lab reports should not have come in. New trial.

State v. Curtis Cowan. Defendant not given proper notice for a satellite-based monitoring hearing. New hearing ordered.

1) Defendant was sentenced for a sex offense after the enactment of the SBM statute (14-208.40B). Then, after judgment, state noticed him for an SBM hearing. Defendant first argues that 14-208.40B only applies to cases sentenced before the enactment and, basically, if you don't get SBM in your judgment for cases after the effective date of the statute, they can't use it later to add SBM to your situation.

Ruled: Even if you weren't evaluated for SBM at time of sentencing, the state can use this provision to come back and put you on it later.

2) Not an ex post facto violation because lifetime SBM is not punitive. Rather, it is regulatory.

3) In determining if the offense was committed against a minor (one of the conditions of SBM), you look at the elements of the crime and, here, solicitation of a minor does count as involving "the physical, mental, or sexual abuse of a minor."

4) Defendant did not receive adequate notice of the basis for DOC's preliminary determination that he should enroll in SBM. The statute requires notice. The notice must include the category that Defendant falls into that makes him eligible and briefly state the factual basis. Here, the notice simply said: you meet the requirements and you have a hearing scheduled. This was inadequate.

Other cases.

State v. Melvin Ferguson. Appeal from murder conviction, 1st degree found by premeditation and deliberation and felony murder.

1) Defendant convicted on felony murder theory because, after killing the defendant, he stole his car. This is a killing in the course of a felony (armed robbery) because it was part of a course of conduct including a felony, even though the felony was committed afterwards. Rejects the "afterthought" theory.

2) Sufficient evidence of premeditation and deliberation. Defendant alleges imperfect self-defense. Factors for p&d: "(1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim’s wounds." Here, defendants subsequent concealment of evidence, killing over a drug dispute, and the 79 stab wounds support p&d.

3) No error in excluding the victims prior sexual conduct and character. No constitutional objection made at trial, so waived. Defendant precluded from putting on that victim was openly gay and liked "straight-type persons," as being relevant to show that he was more likely to sexually assault the defendant. Victim's status as homosexual is not relevant to prove he was the first aggressor in a sexual assault. Nonetheless, harmless.

4) No error in allowing state to cross-examine defendant's psychiatrist on prior murder he committed. Psychiatrist theory was that the victim's sexual advance triggered a traumatic reaction and he had not planned the murder. Because the psychiatrist reviewed documents on the 2005 homicide in making his conclusions, the defendant opened the door by putting him on.

5) While admission of "victim impact testimony" in the guilt phase was "likely error", there was no objection and it didn't constitute plain error.

6) Error committed by ordering restitution in the absence of any evidence. Remanded for re-sentencing on this issue only.

State v. May. Appeal of order of lifetime SBM.

Defendant convicted of reportable offense against a minor: indecent liberties with a minor. This is a "sexually violent offense." The erroneous checking of a wrong box by the clerk was a clerical error. Remanded for limited purpose of checking correct box and correcting record.

State v. Shadeek Pittman. Defendant convicted for 1st degree murder. Basically, rode his bike to defendant's house to resolve dispute over a wallet and shot and killed him.

Defendant claimed self-defense, based on an on-going dispute and seeing the victim reach for something, although the victim had no weapon.

1) Trial court did not err in failing to give a self-defense instruction. No evidence of reasonable fear. Never seen victim armed with a weapon. While victim had threatened the defendant repeatedly, he had never threatened him with deadly force or even attempted to harm the defendant. Defendant could not reasonably use deadly force.

State v. Brian Reavis
. Sex offense and burglary conviction.

1) Confession: defendant failed to file a motion to suppress before trial, as such, his objections at trial did not preserve the claim.

2) No error in admitting defendant's prior offenses, where defense opened the door on direct of their witness by inquiring about them.

3) Sufficient evidence of nighttime requirement for burglary, where victim called 911 after her attack at 5:42am, even though testified that "the light was breaking through." Sun did not officially rise that day until 6:44am. Definition of "nighttime" is: "that time after sunset and before sunrise when a man's face cannot be identified except by artificial light or moonlight." Sufficient evidence presented for jury determination. Not plain error for judge to fail to give instruction on nighttime. Not IAC for failing to request, as such error was harmless.

Monday, September 20, 2010

(NON)-Capital Murder trial to start [see comments]

(Non)-capital prosecution of Cody Richardson, a former marine, is set to start this week in Jacksonville. Mr Richardson is charged with the 2008 strangling of his wife.

National Press on North Carolina's Racial Justice Act

NC's RJA, just a year old, was featured in a national press story in the Wall Street Journal. The article highlights the case of Kenneth Rouse. Rouse is a black man convicted of killing a white man by an all-white jury. One of the jurors, interviewed after the trial, used a racial epithet in describing blacks and said that, "Black men rape white women so that they can brag to their friends about having done so."

Sadly, such obvious racial discrimination has gone unremedied for years. Cases like Rouse's will be the first tests to whether elected judges will honor the intent of the legislature and do a very unpopular thing--rule in favor of a criminal defendant.

See the full Wall Street Journal article here.