Monday, June 21, 2010

NC Supreme Court Update (June 17, 2010)

State v. Tanner. The Court of Appeals giveth and the Supreme Court taketh away.

The Court of Appeals ruled that, since the jury acquitted the defendant of larceny, he could not be convicted of possession of stolen goods on the grounds that he knew or should have known the goods were stolen.

The Court distinguished State v. Perry, which held that the jury could not convict of felony larceny while acquitting on breaking and entering, where the basis for felony larceny was a larceny committed pursuant to a b&e. (Defendant must commit the b&e to be guilty of felony larceny pursuant to a b&e)

Here, the larceny is not a requirement of proving felony possession of stolen goods. Rather, the defendant must have knowledge or reason to believe the goods were stolen during a breaking and entering. (Defendant doesn't have to commit the b&e to be guilty of felony possessing stolen goods from a b&e).

State v. Michael Ward. No error in judge's decision not to bifurcate capital sentencing procedure to include both a mental retardation hearing and then a more general life/death sentencing.

During capital sentencing, a jury cannot sentence a mentally retarded person to death. Under 15A-2000, "upon the introduction of evidence of the defendant’s mental retardation during the sentencing hearing, the court shall submit a special issue to the jury as to whether the defendant is mentally retarded as defined in this section. This special issue shall be considered and answered by the jury prior to the consideration of aggravating or mitigating factors and the determination of sentence. If the jury determines the defendant to be mentally retarded, the court shall declare the case noncapital and the defendant shall be sentenced to life imprisonment."

The question before the court is whether this statute allows/requires bifurcation of the sentencing hearing-- with first a mental retardation phase, then a general sentencing phase. The court ruled that the statute was ambiguous and it was within the trial court's discretion to decide whether or not to bifurcate. No error here in trial court's decision not to bifurcate.

Justice Brady, joined by Justices Martin and Newby, concurred in the result, but said that trial courts shouldn't be allowed to bifurcate.

State v. Jimmy Ward. Affirming the COA decision that an expert's identification of controlled substances by visual identification alone was unreliabe. See COA opinion post here.

Wednesday, June 16, 2010

Court of Appeals Update (June 15, 2010)

Reversals and Other Interesting Issues:

State v. Jessica Ferguson. Convicted of felony PWISD marijuana, felony marijuana possession, misdemeanor possession of drug paraphernalia (PDP), and misdemeanor resisting a public officer (RPO). Defendant was riding in a van that was speeding. Police pulled them over. The driver got out, ran away, and was never found. Defendant was left in the van. Police searched the car, found a roach n defendant's purse, a small bag of marijuana in the glove box, and some big bags of marijuana under the seats.

First, defendant challenged officer's opinion testimony that leafy substance found in her purse during a search was marijuana (under plain error). No problem with officer not being qualified as an expert, since the defendant didn't object and no general requirement that they be so-qualified to identify illegal substances. Officer had an adequate basis (training/experience) to make that statement. No error.

Second, defendant challenges sufficiency of evidence of constructive possession. Constructive possession is shown if defendant has:
  • Lacks actual possession, but has the intent and capability to maintain control and dominion over that thing; BUT
  • If defendant doesn't have exclusion possession of the place where the contraband is found, the state must show other "incriminating circumstances" (suspicious behavior, made incriminating statements, failed to cooperate, acted nervous, etc.)
Here, defendant had no special connection to where the marijuana was found. She was not the owner or the driver of the car and the driver fled on foot, while she hung around. No incriminating circumstances, thus no constructive possession of the big bags.

Felony MJ possession charges vacated. Convictions for PDP and RPO stand. Defendant to be resentenced for PDP, RPO, and misdemeanor marijuana possession (the roach).f

State v. Huey. In possession of heroin case, appeal of denial of motion to suppress evidence. Police were searching for suspects of approximately age 18. Stopped defendant, who was 51 years old. Held: Police lacked reasonable articulable suspicion to stop the defendant. Heroin seized was fruit of that illegal stop. Reversed.

Other Cases.

State v. Ricky Bethea. Defense counsel assertions at trial and failure to object to sentencing worksheet constituted a stipulation that a prior out-of-state felony (federal conspiracy to distribute cocaine) was substantially similar to an instate felony for prior record points.

Counsel's statement:

DA: Does [defendant] stipulate to having two prior record level points for felony sentencing purposes, making him --

DEFENSE: Judge, I saw one conviction on the worksheet. Ricky has agreed that’s him. Two points.

State v. Thomas F. Brown. Defendant convicted for trafficking cocaine. Appeals denial of motion to suppress statement.

During a traffic stop, an officer smelled marijuana and saw a "green leafy substance" on defendant (a passenger)'s shirt. The trooper searched the defendant and found white powder. He was interrogated and admitted that he was a "mule" and planned to sell the cocaine for someone else.

Defendant contends his Miranda waiver was invalid because it was not made knowingly, intelligently, and voluntarily. No error where defendant didn't say he understood after each warning, but rather only said "yes" to a final question“do you understand each of these rights
that I have explained to you?"

State v. Kendrick Dark. In possession of cocaine case/hand-to-hand sale case, defendant moved to reveal the identity of a confidential informant.

The State is privileged to refuse to reveal a confidential informant, with some exceptions. The trial court must balance the state's needs versus the defendant's right to present his case. “Two factors weighing in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, and (2) the state’s evidence and defendant’s evidence contradict on material facts that the informant could clarify. Factors which weigh against disclosure include whether the defendant admits culpability, offers no defense on the merits, or the evidence independent of the informer’s testimony establishes the accused’s guilt."

Here, those the informant was present and arranged the drug sale, there was no forecast of how the identity could prove useful to the defendant, especially where the defendant's guilt is established by the officer who made the hand-to-hand purchase.


State v. Jason Mauck. Defendant challenged an out-of-state probation revocation on jurisdiction grounds, arguing the state did not prove the probation had been transferred to Buncombe from Haywood County.

No jurisdictional problem here because a prior modification occurred before a Buncombe judge and the modification--which was entered in Buncombe--was being revoked. Further, no proper notice of appeal from the initial modification, so cannot attack the jurisdiction of the modification in this appeal.

State v. Kelcie Morton. On remand from Supreme Court reversal adopting prior COA dissent (which found reasonable suspicion for a stop). COA now has to deal with remaining issues.

1) Officers did not exceed scope of search for weapons by taking a digital scale during pat down. During pat down, the officer immediately recognized (plain touch) that it was a digital scale and, in conjunction with tips about drugs, that this was illegal paraphernalia.

2) The digital scale (along with drug selling area and informant tips) created probable cause for more intrusive searches.

State v. Dwayne Pringle. Appeals conviction for robbery and conspiracy to commit robbery. Defendant’s appellate counsel states he is “unable to identify an issue to support a meaningful argument for relief on appeal” and “finds the appeal to be without merit.” The court raised a few issues on it's own and then found no error. Why was this published?

State v. William Walker. Appeals conviction of assault with a deadly weapon inflicting serious injury.

Defendant challenges state's use of its own witness's prior statements, on basis that those statements were collateral and contained some inconsistencies. The court held, because the two statements were "generally consistent" with each other, they were admissible as prior consistent statements.

Monday, June 7, 2010

Andrew Ramseur gets death


This afternoon a Statesville jury sentenced Andrew Ramseur to death.

Friday, June 4, 2010

Andrew Ramseur

Today, the jury began deliberating on whether or not to sentence Andrew Ramseur to death in Iredell County. Read more here.

Up to Date!

As you may have noticed, I've been updating our COA decisions like mad! We are finally back up to date. For consistency, I back-dated the posts on these decisions so that they will be fluid in time for the future.

Will try to keep up better, but sometimes duty calls....

Life in Robeson County

Yesterday, a Robeson County jury returned a life without parole sentence, following the first degree murder conviction of Carlos Keels. Keels was convicted for the beating death of a young child, after she wet herself.

The jury rejected the only aggravating factor submitted-- E-HAC-- especially heinous, atrocious or cruel. In the guilt phase, the jury only convicted on 1st degree murder under the theory of felony murder (felony child abuse), rejecting two other submitted theory--premeditation and death by torture. The defense successfully argued that, in rejecting torture as a theory of 1st degree murder, the jury had effectively rejected the E-HAC claim. The jury agreed and returned a life sentence with no aggravators found. Mr. Keels was 22 at the time of his crime. Under NC law, which forbids parole in cases since 1994, he will die in prison.

This brings to close a very expensive trial in Robeson County, that began well over two months ago.

Wednesday, June 2, 2010

Court of Appeals Update (June 1, 2010)

Reversals and other interesting cases.

State v. Brunson. Conviction for trafficking of hydrocodone and "improper passing" overturned.

During traffic stop (where defendant stopped a passed vehicle and almost hit a cop car), officer ordered the defendant, who seemed nervous, out. The defendant kept putting his hand in his pocket. The officer grabbed his hand and reached in the pocket, finding a pill bottle, with white pills in it. The officer called a pharmacy, learned that the mark on the pills, M360, was consistent with hydrocodone. The defendant was then arrested. Defendant tried and sentenced for trafficking in hydrocodone (a sch. III substance) and sentenced to 225 to 279 months.

Issue: State expert testified that the pills were hydrocodone by looking up the symbol, but without conducting any chemical analysis. Held: Expert should not have been allowed to testify to chemical analysis based on visual inspection alone, as this was unreliable expert testimony, inadmissible under Rule 702.

"However, without performing any chemical analysis on the pills, her testimony, although supported by experience and education, was tantamount to baseless speculation and equivalent to testimony of a layperson. Ms. Dewell’s proffered method of proof, visual inspection, was not sufficiently reliable as a basis for expert testimony."

State v. Johnson. Only issue on appeal was suppression motion.

1) Defendant's auto stop was based on an anonymous tipster that had identifying details or the person and car, but no information on the informant's basis of knowledge or information to predict the future behavior of the defendant. As such, the tip lacked sufficient indicia of reliability. As such it did not provide probable cause to search the car.

2) The stop, however, based on DWLR was legal. Under Arizona v. Gant (2009), however, the search of defendant's car was illegal. Defendant was in the police car, being arrested for DWLR. Officers could not lawfully search the interior incident to arrest, as defendant had already been removed from the car and couldn't reach anything.

Other cases.

State v. Bivens. Undercover officer's approached defendant (in a drug area) and made a controlled buy of what they thought was crack, but turned out to be sodium carbonate. Defendant convicted of possession with intent to sell, sell, and delivery of a counterfeit controlled substance (3 separate charges) . He was sentenced as an habitual felon to 80 to 105 months.

1) Defendant requested a jury instruction with the full definition of a counterfeit controlled substance from N.C. Gen. Stat. 90-87. Fails because defendant did not make his request in writing. Even if he had, no error because, even though court left out from definition the phrase: "and the amount of that consideration [paid for the fake drugs] was substantially in excess of the reasonable value of the substance" was not error as this is not an element of the offense, only a description of some evidence in support. The failure to instruct was not prejudicial.

2) Sufficient evidence here, even though defendant did not use the word "crack", where officers said they wanted a "20" and defendant produced a white crack-like substance in exchange for $20.00

State v. Crowell. Defendant pleaded guilty to trafficking in cocaine and appealed his denied motion to suppress, based on an illegal stop. Here, police stop was based on an informant's statement. This informant was known to the police and had previously given correct information. The informant was not anonymous. Looking at it in all it's circumstances, there was sufficient information to find probable cause to make the search of the car.

State v. Paddock. Convicted of 1st degree murder (under felony murder) and felony child abuse in death of her son, Sean Paddock, who died of asphyxiation, because he was tied up with blankets to prevent him from moving in the night.

State moved, under 404(b) to introduce extensive evidence of prior abuse of defendant's other 6 children. Trial court found the evidence relevant to show common plan/scheme, motive, malice, intent and lack of accident. Incidents included hitting the children and acts of torture, such as making a child ingest vomit, denying the children food, refusing to allow the children to go to the bathroom, beating them, and sitting for hours with knees touching the wall. Evidence properly admitted. In child abuse allegations, prior acts of violence against minors are commonly admitted under 404(b). The fact that some of the prior acts were against adopted children and step-children does not make them too dissimilar for admitting under 404(b).

No error in allowing psychologist to testify that the children were subject to "ritualistic abuse" and "torture." Her testimony did not amount to an inadmissible opinion on credibility, but was rather based on evaluation and appropriate use of her expertise.

State v. Pettigrew
. Defendant found guilty of 2 counts 1d sex offense, but not guilty of indecent liberties. Beginning at age 11, when his little brother was 6, defendant began committing sexual acts against his brother, which escalated over time. From statements, it was clear that the abuse stopped sometime prior to a violent incident that occurred on August 6, 2001, when defendant was 16 and the victim was 10.

At the close of evidence, defendant moved to dismiss on grounds that state had not proved the abuse occurred during the time set out in the bill of particulars (Feb. 1 to Nov. 20, 2001) (the period of time that the defendant was over 16 and his little brother was 10).

1) Evidence of abuse was sufficient. Substantial evidence existed and any variance between allegation and proof of time is not a material variance. The date is not an essential element.

2) Defendant argues that the court lacked jurisdiction, because no proof that any abuse occurred after turned 16. There was substantial evidence that defendant did commit the offenses during the time period. (Although the court doesn't say what that consists of).

3) Sentence of 32 to 40 years in prison for 1d sexual offense is not cruel and unusual.