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.

Tuesday, September 14, 2010

Capital Trials Around the State

Late summer and fall are seeing many capital trials around the state.

In McDowell County, jury selection just began in the case of Stephen Buckner, a triple homicide.

In Catawba County, trial continues in the case of Edward Wong, a case moved from Haywood county, for the killing of a law enforcement office.

In Cumberland County, trial continues in the case of Dexter McRae.

Finally, last week, in Iredell County, a jury returned a life verdict in the case of Travis Ramseur.


Tuesday, September 7, 2010

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


State v. Bettis. Appeal of possession of firearm by felon and armed robbery.

First, no error in excluding evidence that there was second subject on a bicycle that was not tracked from the scene. The court repeatedly kept out evidence of whether officers had heard about another suspect, matching the robbers description, who was seen in the area around the same time on a bicycle. The defendant failed to preserve this issue by not making an offer of proof or providing further evidence of the "man on the bicycle" issue.

Second, no error in instructing jury on flight, even though there was only "circumstantial evidence" that the defendant was the person seen fleeing the scene in a car.

Third, defendant not entitled to a dismissal or an instruction on common-law robbery on theory that state didn't prove gun was "operable." Basically, in the absence of evidence that the gun is inoperable, the court willing to presume operability. (Which makes sense...basically, if a gun is used in a robbery, that fact alone is some evidence of operability, because who would pull a gun on another person unless it worked?)

State v. Biber. Appeal on suppression grounds of seized cocaine. Police knocked on door of hotel room in response to complaint of drug activity. When the door opened, the hotel manager told the man who answered that "you are not supposed to be here" and then the officer stepped around the doorway and encountered the defendant. The officer asked whose room it was and defendant said it was his (it wasn't). A girl got up off the bed and ran to the bathroom. Officer believed she was destroying drugs and grabbed her and got a crack pipe. Officers then tossed the room and seized drugs and paraphernalia. No drugs found on the defendant, just in the room. There were 3-4 other people there as well.

Held: Trial court found that defendant had no standing to challenge the search. This holding was upheld, but the COA went on to find that no evidence existed of defendant's constructive possession. As such, evidence should have been suppressed.

No drugs were found on defendant or in his duffel bag or any of his personal belongings. No evidence that defendant had exclusive control of any of the items or that there were other circumstances indicating that he, not one of the other people in the hotel room, had possession of the drugs.

Judge Steelman dissented on procedural grounds..

State v. Effler. Appeal of manslaughter conviction. Defendant argued that the court committed plain error in failing to give a "no duty to retreat" instruction and that there was no evidence that the defendant was the aggressor.

Self defense is a complete defense where defendant killed to protect himself from death or great bodily harm, was reasonable in his belief, was not the aggressor, and didn't use excessive force. If the defendant uses excessive force or is the aggressor, the defendant only has an imperfect self-defense and is still guilty of manslaughter.

A self-defense is defeated if the defendant "aggressively and willingly enters into a fight without legal excuse or provocation." Here, sufficient evidence existed that defendant was the aggressor because the fight started after defendant threw his tools in the yard, while cussing at the victim. Also, attempts were made to stop the fight, but defendant kept going and didn't stop until he stabbed the unarmed victim.

Further, failure to instruct on no duty to retreat, in the absence of a request, was not plain error. While the court must so instruct, even in the absence of a request, failure to do so here was harmless.

State v. Forte. Defendant convicted of exploitation of an elder (stealing money from an old person in your care by coercion, abuse of position of trust, or fraud). Sufficient evidence that victim was an "elder" where victim was 99 or 109 and some evidence existed that he could not manage his own financial affairs. Further, even though no formal arrangement existed, because victim relied on defendant to drive him around, manage his finances, etc., defendant was a caretaker under the statute.

No error in allowing the victim to testify; the fact he was an "elder" under the statute doesn't make him incompetent to testify.

State v. Livengood. Defendant found guilty of 1d statutory sex offense and was sentenced to 336 months in jail.

On state's direct, a doctor testified that there was no trauma to victim's hymen. On cross, she stated that this could be consistent with rape or no rape. Later, witness said "There's no physical findings which do not rule out her disclosure" when asked if there were no physical signs of rape. Defendant's objection, that this was an improper comment on the witness credibility, was overruled. No error, as this statement was consistent with her prior statements (that lack of hymen damage is consistent with rape or no rape).

Challenges IAC for failing to object to other portions of the doctors testimony, eliciting bad unhelpful info from her on cross examination, and failing to object to jury request for the doctor and witnesses testimony. (Even though she said she believed the witness was the victim of sexual abuse based on what the witness said). The doctors statements didn't rise to commenting on credibility and the lawyers' questioning did not prejudice the defendant.

No error in not providing those transcripts to jury.

State v. Register. Appeal from rape, statutory sex offense, and indecent liberties convictions.

No error in court order of "sequestering" the defendant's family, but not the victim's family members, during the victim's testimony, on grounds of potential intimidation of the 13 year old witness. Judges have expanded authority, under 15-166, to clear the courtroom except for court personnel in sex offense cases. Defendant does not assert that he was denied 6th right to public trial, only his right to fair trial. No basis for this fair trial right to have family present and was not made at trial, so will not consider the constitutional claims. Does not believe 15-166 precludes such a ruling.

No error, under 404(b), of state putting on 4 witness saying the defendant when they were children. Even though they were 14, 21, and 27 years prior, they were substantially similar to the charged conduct (similar age of the girls, that defendant was living in home in step-parent-like relationship, abuse occurred when wife was at work, and abuse usually occurred in wife's bed) and thus relevant. "She described the rubbing; and, I would say that, as far as vaginal penetration, since the oral penetration — well, I'm not discussing that. I mean, I felt that that was very graphic and believable." Trial court erred in denying defendant's motion to strike that statement, but such error was harmless (as jury could assess credibility for themselves, genetic material found in child's underwear, and the strong 404(b) evidence).

State v. Van Pelt. Appeal of convictions for misdemeanor stalking and harassing phone calls, on claim of insufficient evidence. Defendant, out of the blue, sent the victim flowers, a poem, then constantly paged him and called him at home at night. Called his wife and said, "Your husband doesn't love you. He's having an affair with me." Defendant also filed a complaint against him to the medical board.

Sufficient evidence here. 1) Stalking is defined as: "following, being in the presence, or harassing another person with intent to "place in fear or cause to suffer emotional distress." The conduct here was sufficient to place in reasonable fear. 2) Harassing phone cal is "calling another person repeatedly for purpose of annoying, harassing, embarrassing, etc." The warrant listed only calls to the office, not calls to the home. The office calls were enough and no requirement to prove they actually spoke.

State v. Williams. Appeal of sex offense and crime against nature convictions.

Defendant alleges state failed to prove sex offense. 2d Sex offense is proven if: (1) defendant engaged in sexual act; (2) with a mentally disabled, incapacitated, or physically helpless person, and (3) knew or should have reasonably known the other person was disabled.

Victim had IQ of 56. Court found him mentally disabled and that defendant should have known.

State v. Williamson. Appeal of robbery with dangerous weapon and denial of MAR. No error.

1) Court did not err in failing to instruct on common law robbery, on argument that gun was inoperable (based on evidence presented in MAR). Where no proof offered at trial, gun presumed to be operable and loaded.

2) Court didn't err in denying MAR. Defendant argued that the newly discovered evidence (of inoperability) should result in relief. To obtain relief on new evidence, must prove that: (1) new evidence, (2) probably true, (3) competent, material and relevant, (4) due diligence to search was used at trial, (5) not cumulative, (6) not only impeachment, and (7) different result would have prevailed. Trial court ruled that failed to meet #2, 4, and 7.

Probably True: Although evidence of inoperability was uncontradicted at hearing, witness Lemon was the only source and made no mention of this in initial police interviews. Trial court made reasonable determination.

Due Diligence: Legal assistant at the DA's office found the info out and sent to counsel and it arrived the day before trial, but the defense didn't check his mail and missed it at trial. This is not due diligence. Court found that nothing wrong with DA never mentioning this at trial to court or counsel.

No error in trial court failing to enter written order. McHone's reference that 15A-1420(c)(7) is "a directive to the trial court to make written conclusions of law and to give its legal reasoning for entering its order." This is dicta. Here, court put oral findings of fact and conclusions of law on the record. No reason why this is inadequate.

Judge Wynn dissents on the MAR issues.