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.