Friday, May 21, 2010

1st Death Verdict of Year: Michael Ryan

Today, Michael Ryan was sentenced to death in Gaston County.

Ryan fired his lawyers after he was found guilty of 1st degree murder, refused to submit any mitigating factors to the jury and essentially asked for a death sentence, citing as his reasons the additional appeals and post-conviction legal assistance provided to death row inmates.

His lawyers requests for a continuance to convince their client not to take this course of "suicide by jury" was denied by the court.

Michael Ryan was tried last year and the jury hung (8-4) on the issue of guilt.

Wednesday, May 19, 2010

Court of Appeals Update (May 18, 2010)

Reversals and interesting cases.

State v. Brewington. Defendant found guilty of possessing cocaine. Challenge to expert testimony based on Melendez-Diaz grounds (that expert testified to opinions of non-testifying expert about the chemistry of the cocaine). SBI Agent identified the substance as cocaine based solely on testing conducted by a non-testifying agent. Under Melendez-Diaz, this violates the 6th Amendment right to confrontation.

State v. LePage. Defendant convicted of statutory 1d sex offense, delivering a constrolled substance (CS) to a minor, indecent liberties, 2 counts contaminating food with a CS, and possessing a CS with intent to deliver and was sentenced to 238-295 M + 64 to 86M + 16-20M + 6-8M. Basically, defendant drugged a 14-year-old neighbor and had sex with her.

1) 404(b): state offered evidence of a 16-year old who met the defendant in AA and defendant made sexual advances towards her. She rebuffed him. Found this error harmless in light of overwhelming evidence and did not evaluate the 404(b) evidence. (Ed. note: the court didn't evaluate it because it's absurd on it's face to use as 404(b). Propositioning a 16-year-old is perfectly legal and the fact he accepted rebuff without further incident makes it nothing like the charged conduct). Also dealt with jury instruction issue on 404(b) in same manner.

2) Proper to instruct on anal penetration as theory for 1d sex offense where evidence of anal laceration was present.

3) Indictments for deliver of a CS and contamining food with schedule IV CS were defective. Indictments said the CS was "Benzodiazepines", which is not listed in schedule IV. As such, the indictment was defective and those charges are vacated (as trial court lacks jurisdiction if there is a fatal defect in an indictment). Benzodiazepines are class of drugs. They should have used the name of the specific drug used (Clonazepam).

State v. Nunez. Defendant convicted of multiple counts of trafficking in marijuana. Sentenced to 25+25M.

1) Sufficient evidence present. Elements: 1) knowingly transport; 2) more than 10 pounds of marijuana. Circumstantial evidence of knowledge (where defendant received deliveries of MJ) sufficient to meet this standard. Adequate circumstantial evidence of knowledge where the packages were address to someone who did not live in the apartment and the defendant accepted them and took them inside without telling the postman of the name error and immediately calling someone else to pick up the packages.

2) Trial court erred in running the sentences consecutively. Trial court believed (based on representations of counsel) that Gen. Stat. 90-95(h)(6) required the sentences to be run consecutively. 90-95(h) reads:

“[s]entences imposed pursuant to this subsection shall run consecutively with and shall
commence at the expiration of any sentence being served by the person sentenced hereunder."

This means the sentence must be run consecutively to any sentence already being served. It does not have to be consecutive to sentences imposed at the same time. As such, the trial court has discretion to determine if it will be run concurrently or consecutively. Remanded for resentencing. -

Other Cases.

State v. Lackey. Defendant found guilty of possession of cocaine (.1 grams) and habitual felon.

1) Did the trial judge error in giving a second Allen charge (Gen. Stat. § 15A-1235? Such an instruction is permissive, not mandatory, and within the trial court discretion. Here, 1st Allen charge given after 1 hour of deliberation and vote was 11-1. The next day (after a total of 1 1/2 hours of deliberation), the judge gave another Allen charge before they started deliberating. No abuse of discretion.

2) The sentence of 84-110 months was not grossly disproportionate under the 8th Amendment for possession 0.1 grams of cocaine.

3) The following process was used for polling the jury: "As foreperson on the jury, you have returned for the unanimous verdict of the jury, “We, the jury, return as you unanimous verdict that the Defendant Ricky Earle Lackey is guilty of possession of cocaine.” Is this your verdict, and do you still assent thereto?" Defendant objected to the wording of the questions for not asking it as two questions: (1) Is this your verdict? (2) Do you still assent thereto? Court found no error and said this complied with the statute.

State v. McCormick. Found guilty of assault by pointing a gun, communicating threats, AWDWISI, and 1d burglary.

1) No fatal variance between the indictment for 1d burglary and the proof offerred. Defendant argues that the indictment failed to properly identify the premises, because the indictment said, the "house of Lisa McCormick at 407 Ward Branch Rd" but really it was at 317 Ward Branch Rd. Nominal errors in the house number do not render indictments defective.

2) Lack of "without consent" in indictment is not a defect as "without consent" is not an element of burglary (rather, it is a defense).

3) No error in taking judicial notice of sunset for "nighttime" requirement of burglary.

State v. Reid. Defendant found guilty of 2d rape and incest.

1) Challenge to incest (14-178) as constitutionally overbroad was not preserved.

2) Challenge to cross-examination objections was not preserved.

3) No error in allowing defendant to represent himself at trial, despite his apparent mental illness. No clear evidence of delusional thinking and proper inquiries were conducted.

State v. Toledo. Trial court granted a suprression motion, where spare tire was taken from under defendant's vehicle without a search warrant.

Defendant stopped while driving a black suburban with a Connecticut license plate for following too closely. During the stop, noticed that the defendant was very nervous. Asked him if he had any drugs and the defendant said, "no, go ahead a look." Officer saw a tire in the luggage area that was larger than the tires on the car. Driver said the tire was from his "truck in Miami." Driver couldn't explain why he had a truck in Miami if he lived in Connecticut. The officer released some air from the tire and smelled marijuana. He handcuffed the defendant, searched the car, and found 16.45 pounds of MJ, most of it in a tire under the vehicle. Trial court surpressed the evidence from the tire seized under the vehicle, as it exceeded consent.

Held: Officer could search the entire car because he had probable cause due to the marijuana smell from the tire in the luggage compartment. Reversed. Trial court confused new law under Gant for search incident to arrest (which wouldn't have allowed the search of the tire underneath) with the general automobile exception (which does, as long as there is probable cause).

Satelite Based Monitoring Cases (COA May 18, 2010)

Yesterday the Court of Appeals issued 4 satellite-based monitoring cases today.

SBM (14-208.40), is automatic for life if the offender is classified as:

1) A Sexually violent predator: convicted of a sexually violent offense and have a mental abnormality or personality disorder that makes them likely to engage in violent offenses with strangers or persons with whom a relationship has been established for the purposes of victimization.

2) Recidivist

3) Convicted of an "aggravated offense"- one that includes vaginal, anal or oral penetration with use of force or with a victim less than 12.

4) Was a violation of Gen. Stat. 14-27.2A (statutory rape of child under 13 by adult) or 4A (sexual offense with child under 13 by adult)

If the offender committed "physical, mental, or sexual" abuse against a minor, then the DOC must do a risk assessment and SBM is appropriate if the court determines that "the offender requires the highest possible level of supervision...for a period of time to be specified by the court."

State v. Bowlin. Defendant ordered to enroll in lifetime SBM for 2 counts of indecent liberties (which she received probation for in 2004). Defendant challenged solely on ex post facto grounds, as she committed the offense before the statute went into effect (2007). No violation, based on Bare. (see post on Bare decision, here.)

State v. Brooks. Defendant convicted of sexual battery and assault by strangulation and sentenced to 50-60 M and ordered to enroll in SBM for life. Defendant gave oral notice of appeal at the hearing, which the court found inadequate because SBM is not punitive, but decided to treat his brief as a writ and granted certiorari.

The basis of the lower court finding for SBM was that this was an aggravated offense. In determining if an offense was aggravated, the trial court looks only to the elements of the offense, not the underlying facts.

The underlying elements of sexual battery 14-27.5A do not include penetration. In fact, the difference between sexual battery and 2d degree rape or 2d sex offense is penetration. Therefore, must reverse the enrollment into SBM (even though the underlying allegations and initial charge here were for 2d rape, the plea was only to sexual battery which does not include penetration as an element). Reversed.

State v. King. Defendant convicted of indecent liberties with a minor. The court ordered SBM for life based on finding that this was an aggravated offense.

Held: COA found that this was not an aggravated offense (same rationale as above). Remanded for findings of on SBM under "highest level of supervision" prong.

State v. Yow. Defendant convicted of 3d sexual exploitation of a minor, received probation and the trial court ordered SBM for 10 years as a recidivist.

Defendant argued that this was barred by ex post facto, double jeopardy, and trial by jury. All these constitutional issues are rejected.

Trial court erred in only ordering enrollment for 10 years. Upon a finding of recidivist, enrollment for life is mandatory. However, there is no cross-appeal by the state, so the court does not address this error.

I will do an update with the rest of the cases soon.

Monday, May 17, 2010

US Supreme Court: Life in Prison for Juveniles Violates 8th Amendment (sometimes).

Graham v. Florida. Today the high court ruled that the 8th Amendment forbids sentencing a juvenile to life in prison without parole for a non-homicide crime. At the same time, in Sullivan v. Florida, the court digged the issue of LWOP for homicides. So that issue remains open.

Thomas, Scalia and Alito dissented (no surprise there). Roberts joined in a separate opinion.

Effect in NC? Very little. The only non-homicide LWOP crimes in NC are B1 felonies (1st degree rape or sex offense), aggravated for level V or VI offenders. Very few juveniles would be able to rack up that kind of record level pre-18 and get a judge to throw the book at them, so the issue is negligible here.

The big issue for NC is the one digged in Sullivan. We'll just have to wait and see!

There are currently 44 juveniles serving LWOP sentences in NC.

Monday, May 10, 2010

Court of Appeals Update (May 4, 2010)

Reversals and Other Interesting Cases

State v. Braswell. Insufficient evidence of failure to verify address (for sex offenders) where no evidence that he ever received the proper verification form to fill out.

State v. Brennan. Violation of confrontation clause where expert testified that substance was cocaine, essentially by reading a non-testifying expert's report. Distinguishes this from State v. Mobley, where testifying expert relied on non-testifying experts report in forming her own expert opinion. New trial.

State v. Samuel. Trial court committed plain error in allowing the admission of two guns found in defendant's home during a robbery trial. The guns should have been excluded under 402, as they were not relevant to any fact in issue. The gun used in the robbery was described as a big, gray 9mm semi-automatic pistol. A small silver revolver was found in defendant's room and another semi-auto was found in a safe in his step-father's room. Because there was not any evidence linking either gun to the crime, there existence was immaterial and improperly admitted. New trial.

Wynn concurs, but believes only admission of the silver revolver was error.

Other Cases.

State v. Hager. No error in allowing state to amend indictment after close of all evidence to change the offense date.

State v. Hall. Where defendant possessed pills that tested positive for both ketamine (Special K / Mad Kat) and Ecstacy, no double jeopardy in his conviction for both possessing Schedule I and possessing Schedule III substance.

State v. Jarrett. During a stop at a license checkpoint, an officer noticed and asked a passenger what was in the can he was drinking. It was a can of beer. At this point, the stop went from a license check to a full seizure.

First, the license stop was valid a checkpoint. Checkpoints must be reasonable: brief in duration, without indiviudalized suspicion, and with a legitimate purpose. The checkpoint stopped all cars (no individualized suspicion), to check ID then waive through if properly held (brief/reasonable), purpose was to check IDs and for any plain view evidence of criminal activitiy because drivers in that area often don't have licenses or are DWI (legitimate purpose, enforcing DWLR laws). The checkpoint was overall reasonable as the interference was brief and the purpose legitimate.

Second, the seizure of the defendant at the checkpoint was valid. Officer had reasonable suspicion to continue the stop and ask "What's in the can" because he saw a can and saw the passenger try to hide it. Once the can was known to be beer, the officer had cause to continue investigating whether the defendant was DWI.

State v. Johnson. IAC claim dismissed without prejudice to file MAR.

Defendant challenged the admission police log as "corroborating evidence," offerred to corroborate police testimony--an alleged "non-hearsay" purpose. The court dodged the issue, finding the admission harmless.

State v. Little. First degree murder case. Defendant argues that trial court should have suppressed his confession, under Miranda, that he was subjected to an unwarned custodial interrogation and was interrogated after requesting an attorney.

First, he was not in custody. To be in custody there must be "inidica of formal arrest" (NC rejects the "free to leave" standard). Defendant voluntarily drove to the police station, taken to a room where the doors were unlocked, was patted down for weapons and then questioned. Defendant never told he was under arrest. During interview, officer told him he was not under arrest. At one point during the interview, defendant stood up and said, "I'm trying to leave." No one restrained him and he eventually sat back down. Defendant eventually asked for an attorney and the interview was terminated. Here, these facts do not equal custody.

Second, he was not questioned after asking for an attorney. A request for an attorney requires the police to terminate questioning (as the court notes, this is probably not true if he's not in custody, but they take up the issue "in an abundance of caution"). The request must be unambiguous. Defendant said, "I'm probably going to have to have a lawyer." The interviewer responed... "It's up to you man..." This was not sufficiently unambiguous to trigger Miranda rights.

State v. McCravey. Satelite-based monitoring appropriate for 2nd degree rape, as the definition of aggravated offense (required for SBM) is not unconstitutionally vague and includes 2d degree rape.

State v. Roman. No fatal variance where charging document said the charge was: Assault on government officer during discharge of duty, which was arresting the defendant for communicating threats. At trial, officer testify he was arresting the defendant for being intoxicated and disruptive. This was not a fatal variance as the specific charge being arrested for was not a necessary element of the charge (the elements are: assault, on officer, while discharging duty).

Friday, May 7, 2010

Unabomber's Brother Tours State

From the Daily Reflector. "Mentally ill don't deserve death penalty, group argues"

The Daily Reflector
Thursday, May 6, 2010

When David Kaczynski talks about his brother, he recounts a caring sibling, seven years his senior, who once attached an empty spool to a screen door at three-year-old Kaczynski’s eye level, so the youth could get back inside after playing in their backyard outside Chicago.

Most Americans remember his brother as the Unabomber, the FBI’s most-wanted man in the mid 1990s who was convicted of sending homemade bombs through the mail during a 17-year period. He killed three and injured 23 during his campaign, conducted from a secluded Montana cabin.

It was David Kaczynski who turned the FBI onto his brother after reading a Unabomber manifesto that sounded like Ted, and he shared the turmoil proceeding and following that decision with 30 people Thursday night at St. Paul’s Episcopal Church.

The visit marks the halfway point in a statewide tour organized by Murder Victims’ Families for Reconciliation. The advocacy group argues against the death penalty and partners with the state’s Coalition for a Moratorium in support of House Bill 137, which would eliminate the death penalty as an option for people with severe mental illness.

Ted Kaczynski is a paranoid schizophrenic who refuses to recognize his condition. He doesn’t answer letters from David Kaczynski or their mother.

David Kaczynski described the agony of recognizing evidence of his brother’s thinking in the manifesto, brought to his attention by his wife, Linda. Meeting with families of victims, sharing the facts with his aging mother — his journey was related in calm detail to the strangers in the parish hall.

“For us, it was almost like the end of the world,” he said of Ted Kaczynski’s arrest. “We knew for the rest of time that our name would carry a stigma. Of murder. Of madness.

“It’s like you’re living in a shadow. Everything is changed.”

Ted Kaczynski is serving a life sentence without parole in a Colorado super-maximum security prison, secured during a plea deal his brother believes was taken to avoid any claims of mental instability.

David Kaczynski was joined Thursday by another man, Bill Babbitt, who shared a tale that was eerily similar yet different.

Babbitt’s younger brother, Manny, was convicted of killing 86-year-old Leah Schendel at her Sacramento home in 1980. The murder was committed during a post-traumatic stress disorder-induced flashback to moments internalized during two Marine Corps tours of Vietnam, Babbitt said.

“He was truly traumatized by the war,” Babbitt said, adding that his brother spent three years in a mental institution before moving to California, and also was schizophrenic.

Manny Babbitt dropped out of school in seventh grade and had two failed marriages.

Lke David Kaczynski, Bill Babbitt turned his brother into the police. He had read about Schendel’s death in the papers and discovered a lighter and a train-shaped coin bank belonging to the elderly woman when trying to figure out where Manny went each night.

Manny Babbitt isn’t serving time. He was executed in May 1999. David Kaczynski pointed out that this was despite the fact Manny Babbitt was mentally ill, a veteran and had a court-appointed lawyer who had never tried a criminal case.

“We’re not killing those who committed the worst crimes,” David Kaczynski said. “We’re executing those who had the worst attorneys.”

There are 157 people on death row in North Carolina. Coalition for a Moratorium Director Jeremy Collins said the proposed state law would close a loophole. Mental disorders would be identified at the beginning of a trial, with the maximum punishment life in prison without parole.

“It’ll take hard work, and it’ll take heart work,” he told those in attendance.

There was plenty of heart on the table Thursday night.

“I watched my brother die,” Bill Babbitt said. “I had such shame and guilt.”

He held up a photo of Manny Babbitt in a flag-draped coffin.

“They didn’t have to do this,” he said. “You don’t have to take a life to show that killing is wrong.”

Wednesday, May 5, 2010

Election Results of Interest

Court of Appeals
Steven Walker to have run-off with Rick Elmore for his seat.
Jane Gray to have run-off for with Ann Calabria for her seat.

Durham County:
Freda Black and Doretta Walker to have run-off for McKown's district court seat.
Pat Evans to take Bushfan's district court seat.

Johnston County:
Susan Doyle (R) survives primary in bid for re-election as DA.

Wake County:

Kris Bailey and Dan Nagle to have run-off for Salisbury's seat.


Cabarrus County:
Roxann Vaneekhoven (R) re-elected as DA (no democrat in general).

Catawba/Burke/Caldwell County:
Jay Gaither (R) narrowly defeats challenger for DA.

Stanly County
Michael Parker (R) retains the DA job.

Union County:
John Snyder (R) re-elected as DA in close race. No democrat filed for the general.

Monday, May 3, 2010

Jimmy Woodall says "the will of the state not clear" on the death penalty

"Death Penalty Cases Dwindle" From Raleigh News and Observer

When a Wake County jury decided late last month to spare the life of a man that prosecutors described as a "monster" and "cold-blooded serial killer," death penalty opponents quietly hugged one another.

Samuel J. Cooper, 33, whom defense attorneys had portrayed as mentally scarred from years of physical and emotional abuse, would not join the 157 inmates on North Carolina's death row. The killer, convicted by the same jury of five first-degree murders, would spend the rest of his life in prison without possibility of parole...

"You look at that case as a prosecutor and say, 'If you can't get the death penalty in that case, gee, what case are you going to get the death penalty in?'" said Jim Woodall, the district attorney in Orange and Chatham counties who also serves as president of the N.C. Conference of District Attorneys. "More and more, the climate is against trying capital cases; therefore, you have to have almost a perfect trial for it to be upheld."

The Cooper sentence came one day after federal prosecutors accepted a plea deal in the capital case of Demario Atwater, one of two men accused of murdering Eve Carson, who was student body president at UNC-Chapel Hill.

Atwater, one of the few in North Carolina charged both in state and federal court for the same crime, agreed April 19 to plead guilty to federal kidnapping and carjacking charges, crimes that could have resulted in a death penalty. In exchange for the guilty plea, Atwater was assured a sentence of life in prison without possibility of parole, not death by lethal injection.

Atwater still faces the possibility of capital punishment if he is convicted on state charges of murder and kidnapping. He is being tried in Orange County, where no jury has returned a death sentence in modern times...

Woodall, the Orange-Chatham district attorney, says recent legislative actions and the three-year halt of executions have made him question, too, whether leaders still strongly support a death penalty in this state.

Woodall said that he and other prosecutors believe "the will of the state is not clear."