Tuesday, August 31, 2010

North Carolina Supreme Court Decisions, August 27, 2010


The Supreme Court decided the controversial case of Jones v. Keller, which was blogged about here. The court also published the following criminal appeal decisions:

State v. Chandler. Ruling that there has been no "significant change" in law regarding admissibility of testimony in child sexual abuse cases for post-conviction purposes.

One was to obtain post-conviction relief (i.e. after sentencing and direct appeal are over) is under 15A-1415(b)(7) if “[t]here has been asignificant change in law, either substantive or procedural, applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive application of the changed legal standard is required.”

Here, defendant was arguing that the expert witness who testified against him in his sex-offense case would not be admitted under new law; as such, he is entitled to a new trial. The Superior Court agreed.

In a series of cases, the S.C. had ruled in favor of defendants and decided that certain expert testimony on whether or not sex abuse had occurred was inadmissible. The court found that these cases (State v. Bates and State v. Stancil) were based in existing law and were not changes; rather, they followed the established precedents. As such, no change and no relief.

State v. Davis. Held that court erred in sentenced defendant for felony death by vehicle and felony serious injury by vehicle when he had also been convicted for 2nd degree murder, assault with a deadly weapon inflicting serious injury.

Court held that the General Assembly did not intend that individuals be convicted for both. Both assault and death by vehicle included a prefatory clause defining punishment for these offenses "unless the conduct is covered by some other provision of law providing greater punishment." Because here the defendant was convicted of 2d murder and AWDWISI, both having greater punishments, the court could not sentence the defendant under both statutes.

State v. Ray. Defendant did not preserve his 404(b) claim. State, in a sex offense case, offered evidence of prior incidents of violence toward women when defendant was drunk. Court found that issue was not preserved and was harmless error.

Justice Hudson, with Justices Parker and Timmons-Goodson, dissented.

Friday, August 27, 2010

NC Supreme Court Issues Decision in Old Life with Parole Cases

Life With Parole, a sentence that was replaced with life without parole in 1994, from 1974-1978 meant a maximum term of 80 years, with parole eligibility.

As you may have heard, a group of prisoners sued seeking release on the argument that, under DOC regulations giving you 2 days credit for each day in jail without rule-breaking (plus some other jail credits), they were entitled to release as they had served their 80 years.

Today, the Supreme Court took away the relief granted by the lower courts, by claiming that the DOC regulations (which included no specific exception for persons sentenced to life with parole and had been keeping records on those incarcerated for "life", tallying their good behavior and other credits) didn't apply to life sentences. The basis for that holding is explained in Jones v. Keller. Are you convinced?

One has to wonder if elected judges can ever protect the liberty interests of society's least likeable citizens. To their credit, Justice Timmons-Goodson, joined by Justice Hudson, dissented, saying:

The rule of law, consistency, and fundamental fairness are not advanced by today’s decision allowing the Department of Correction (DOC) to withhold inmate Alford Jones’s accumulated sentence reduction credits. This decision violates the DOC’s own regulations and policies, Jones’s constitutional rights, and the doctrine of separation of powers. And by doing so, I fear that a cornerstone of our legal system, the writ of habeas corpus, is devalued. The undisputed record reflects that Jones has fully served his term of imprisonment and is thereby entitled to immediate unconditional release. The decision to the contrary offends all notions of fundamental fairness. I therefore respectfully dissent.

Will update with summaries of the other cases soon.

Thursday, August 26, 2010

COA Decisions, 8/17/2010

** Sorry: Somehow missed these back in 2010. Adding them now with a back-date for completeness.

State v. Choudhry. Trial court didn't err by not conducting evidentiary hearing into counsel's possible conflict due to multiple representation.

No error in denying defendant from submitted hearsay statements of co-defendant's that the killing was committed in self-defense. Under Rule 804(b)(3), as a statement against interest, the statement must be against interest (it was) and have corroborating circumstances of trustworthiness. Here, no corroborating circumstances, as the co-defendant had a motive to lie and say it was self-defense. Also, state didn't open the door when an officer testified about the defendant’s response to being informed that the co-defendant had made a statement to the police.

State v. Davis. No error in failing to find "acceptance of responsibility" mitigator where defendant apologized. No evidence of restitution presented, thus restitution award is vacated.

State v. Grady. Confrontation clause error by using substitute analyst, but error was harmless.

State v. Hargrove. Defendant failed to preserve his double jeapardy claim, by failing to object to a mistrial being granted.

State v. Hudson. Defendant failed to preserve other suppression issues, as only raised stop below. Reasonable suspicion to stop where officer saw vehicle cross the center line twice and the fog line once.

Sufficient evidence of constructive possession where drugs were found in a car that was carried in a car carrier driven by defendant, he had keys to all the cars, and he acted suspiciously upon arrest.

State v. King. Officer had reasonable suspicion for Terry Stop and pat-down. Stop valid due to registration problems and, during stop, defendant informed officer he had a gun. Defendant's volunteering this info did not demonstrate that he was not a threat; rather, it provided reasonable suspicion of armed and dangerous for a frisk.

State v. Kirby. Sufficient evidence of murder, despite defendant's claim of self-defense.

No 403 problem in evidence that defendant was in a gang and selling drugs in the area, as it was relevant to state of mind (both the victim and defendant were gang members) and motive.

State v. Ligon. Defendant opened the door to hearsay statements by the child victim and her babysitter.

Not plain error in witnesses describing pictures taken by defendant of child victim in sex case as "graphic", "objectionable", "of a sexaul nature" and that the defendant pulled away the minor’s pant leg to get a “shot into the vaginal area.”

Insufficient evidence of sexual exploitation where pictures of child victim did not depict any sexual activity.

State v. Mack. Sufficent malice for 2d degree conviction in traffic accident case where defendant was DWLR, drove dangerously to avoid arrest, fled from an officer, drove more than 90mph, ran a red light, and drove on the wrong side of the highway.

State v. Marshall. In stolen property case, state's evidence showed defendant at a gas station near the time a car was stolen (but it was not stolen until after he left) and the car found parked on a city street near his house. Held that this was insufficent evidence for a construction possession instruction.

State v. Mendoza. Court erred in allowing evidence of defendant's pre- and post-Miranda silence. Harmless due to overwhelming evidence of guilt.

State v. Smith.

No error in failing to give alibi instruction. Defendant argued that, in child murder case, the child's drowning in a bathtub was accidental, as he left the child there too long. He put on evidence of someone seeing him not by the tub. Court held that this didn't warrant an alibi instruction, and was rather just incidental to his defense of accident. An alibi is something that makes it impossible for you to have committed the crime because you were somewhere else.

Use of post-arrest silence permissibly used as impeachment, where defendant waived right to silence by making statements, but left out details used in his in-court statement.

State v. Wooten. Defendant sent 5 faxes to victim. First 4 contained no threats, 5th did. Sufficent evidence for stalking conviction.

State v. Wray. Overturned trial courting finding that defendant forfeited his right to counsel. Forfeiture is disfavored. There is some evidence that defendant may have been incompetent to represent himself under Indiana v. Edwards, he was given no opportunity to be heard in the forfeiture hearing, and his conduct did not rise to the level warranting forfeiture.

State v. Yencer. Davidson College Police had no authority to arrest for reckless driving as the delegation of state authority to a campus police force of a religious institution violates the establishment clause of the NC Constitution.

Thursday, August 19, 2010

SBI Saga Continues


Yesterday, Attorney General Roy Cooper announced that evidence was hidden and misreported in at least 190 cases from the serology department aof the SBI.

Three cases of hiding or falsifying evidence involve inmates who have been executed, including Desmond Keith Carter (left).

For the 187 cases where persons are still in prison or out, there is hope to correct these wrongs. We can look at these trials and see if the falsified evidence made a difference and, even worse, if it put innocent men in jail.

For these three men killed by the State of North Carolina, there is no meaningful relief available. The problem with final punishment, is it's premised on a system that works.

With recent findings of widespread racial discrimination in jury selection, capital charging and sentencing, and now news that the serology section lied and hid evidence regularly in murder cases, we cannot have any confidence that the system works.

Governor Purdue needs to commute the sentences of everyone on death row whose case was investigated by the SBI, before any more uncorrected mistakes are made.

Read more here.

Wednesday, August 18, 2010

NC SBI Cheats to Win

Well, the public is finally learning what everyone inside the system already knew. The SBI crime-lab--unlike what you see on TV--is not a neutral body of talented scientists seeking the truth. They are simply another arm of the police and prosecution.

When the SBI gets evidence they are told: here's the evidence, help us convict defendant X. And that's exactly what they do.

The N&O has exposed these problems and one has to wonder--how many not guilty folks are in jail due to these unethical problems. Nothing gets a guilty verdict like a "scientist" saying that the state got the right man.

Read more here.

Tuesday, August 3, 2010

NC Court of Appeals Decisions (August 3, 2010)

State v. Clayton. Defendant appeals order to enroll in satellite-based monitoring. Trial court held an SBM hearing in 2008 and found defendant did not have to enroll. Then, in 2009, during a probation violation hearing, the court revisited the issue and found that he did have to enroll.

Held: The court did not have any basis, as part of a probation violation hearing, to conduct another SBM hearing, where it had already held one on the same reportable conviction.

State v. Frazier. Reversed expungement. Defendant was convicted of accessory after the fact with an offense date 1995. The court granted expungement under N.C.G.S 14-50.30. However, that statute only applies to offenses committed after Dec. 1, 2008. As such, expungement was without legal basis.

State v. Headen. Defendant appeals on Batson issue. Defendant made a Batson objection and the trial court ruled there was no prima facie showing of racial discrimination. The state had exercised 2 strikes--one against a white juror and one against the only black juror in the panel. The state, without prompting of the court, indicated the reason for the strike was the jurors tattoos and baggy jeans.

Court ruled that the state's race-neutral reason was facially valid and not rebutted by the defense.

State v. Inman. Appeal dismissed, as no written notice of appeal was filed.

State v. Mobley. State entered evidence of a call placed from the booking area of jail.

First, defendant objects that it was not authenticated. Court ruled sufficient evidence of authentication (to get to a jury) under 901 where voice sounded like defendant (jury can judge voices for itself), was to a number that defendant later called from inside jail.

Second, the call was permissible to admit as a business record exception to hearsay under rule 803(6) by record custodian, Sergeant Brantley (note: only the other voices on the call need a hearsay exception; once it is authenticated as defendant, his voice is not hearsay. Also, the other voices can arguably be admitted as non-hearsay if offered only for context of the defendant's words).

State v. Oxendine
. Another SBM case. Vacated as defendant had a low risk assessment, inconsistent with court's finding that "defendant required the highest possible level of supervision." Click here for extended discussion of NC SBM law.

State v. Sargeant. Appeal on 1st degree murder, kidnapping, robbery, and burning of personal property.

Primary Issue: Did the trial court err in accepting partial verdicts from the jury? At the end of the first day, the jury said it had not reached verdicts on all charges. The judge had the jury enter verdicts on the charges they did agree on, so the jury submitted verdicts on kidnapping, robbery, and burning, and first degree murder under theory of lying in wait and felony murder, but needed more time on 1st degree murder by p&d. The next day, a new verdict form was given to the jury solely on the issue of p&d. Later that day, they returned a verdict of guilty.

Held: Trial court erred by taking partial jury verdicts. This intrusion on the province of the jury cannot be deemed harmless beyond a reasonable doubt.

New trial.

Secondary Issues: 1) Court erred when it barred defendant from entering statement under the residual hearsay exception. The statement was of a co-defendant to police (who took the 5th at trial) saying that the co-defendant snitch in the case was the leader and murderer, not the defendant.

Judge Ervin dissents.

State v. Wright
. Appeal of felony obstruction of justice for failing to complete true campaign finance forms with the State Board of Elections.

Held: Defendant's conduct meets the definition of common law obstruction of justice.

The BOE uncovered that defendant, then a member of the state legislature, failed to disclose over 150K in campaign contributions and 76K in transfers from his campaign account to himself.

Obstruction of justice is "'At common law it is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice. The common law offense of obstructing public justice may take a variety of forms " Here, the knowing filing of false campaign reports count, as the purpose of such reports is to make the data available for voter's review and the BOE to review. By filing false ones, defendant knew he was blocking the BOE and the public from uncovering his improper activities.

No ex post facto problem, as this is old common law.

Monday, August 2, 2010

N&O Article: Victim's Race Skews Death Penalty


The News and Observer last week reported the conclusions of a Colorado Study by Michael Radelet (right) on the Death Penalty in North Carolina.

The study--the most comprehensive of its kind to date--found that "the odds of receiving a death sentence in cases where the victim was white were 2.96 times as high as the odds in cases with black victims."

Even when the study controlled for other factors, such as commission of other felonies or multiple victims, it still found bias in sentencing.

The findings are clear. Kill a white person and you are more likely to end up on death row than if you kill a black person.

Very troubling.

Read more here.