Monday, December 27, 2010

NC Court of Appeals Criminal Decisions, December 21, 2010

Reversals

State v. Wilkins. Nash County. Appeal of felony possession with intent to sell marijuana.

Defendant arrested on old warrants during a traffic stop. The officer found a small plastic bag in the defendant's pocket with three smaller bags of marijuana. The total weight was 1.89 grams. The officer also found $1,264. The state indicted the defendant on felony possession with intent to sell.

The Defendant testified that these were 3 "nickel bags," purchased for personal use. He stated the $1,264 was a $264 check he had cashed and a $1,000 recovered cash bond that his mother had given him. He was carrying the cash because he knew he had warrants and wanted to be able to bond out of jail.

Held: Insufficient evidence of possession with intent to sell, remanded for resentencing on the misdemeanor simple possession (i.e. 6-8 month sentence changed to 1-30 day sentence).

Intent to sell can be inferred from the (1) the packaging, labelling, or storing of controlled substances; (2) the defendant's other activities; (3) the quantity found; and (4) the presence of cash or drug paraphernalia.

Applied to these facts:

(3) only 1.89 grams found. Less than 1/2 a pound is not sufficient, alone, to withstand a motion to dismiss. State v. Wiggins (1977).

(1) Packaged in 3 separate "nickle" bags. Division in cases with such a small amount of marijuana (less than $30.00) cannot give rise to an inference of intent to sell.

(4) Presence of cash only is circumstantial evidence if the presence is unexplained. Here, the cumulative evidence was insufficient. If there had been greater weight or other incriminating circumstances, the cash may have been an incriminating factor.

(2) No damning evidence of defendant's other conduct.


State v. Chillo. Pitt County. Appeal of conviction for breaking or entering a motor vehicle.

1) Indictment stated that defendant broke into the car that was the "personal property of D.L. Peterson Trust." For property crimes that require intent to permanently deprive (i.e. larceny, robbery), the state must specifically allege the ability of the owner, if it is a corporate form, to own property. This can be done by using terms like "INC" or by specifically alleging it as a corporate form capable of owning property. Defendant challenges indictment for not specifically alleging that D.L Peterson Trust is capable of owning property. Court ruled that the term "Trust", like "INC", denotes a specific legal entity that is capable of owning property. As such, the indictment was not defective.

2) Motion to dismiss should have been granted as there was insufficient evidence of intent to commit larceny (as alleged in the indictment). When the indictment alleges a specific intent to commit a particular felony, as here, the state must show that felonious intent.

Here, the evidence showed the intent to break into the car was to show a friend how to "break glass." Nothing was actually stolen from the car and the only other evidence was statements defendant made to a friend that he had "went into cars" in the same neighborhood before. All they did was break the window, they didn't go into the car. Conviction reversed.

State v. Crowder. Avery County. Appeal of revocation of probation. Defendant revoked for 3 "violations"-- residing in house with a minor child (written on judgment), that he not "be alone with any minor child," and that he not "socialize or communicate with any minor child" (the latter two weren't on the judgment).

Defendant put on evidence that the minor child lived with a grandmother, but would visit the house. The trial court said "He is not supposed to have any children anywhere around him" and revoked him.

Held: Trial court abused its discretion as the state failed to present evidence of a violation of a valid condition of probation. A standard condition of probation for sex offenders is that they cannot reside in residence with children during the probationary period. 15A-1343(b2)(4). This does not prohibit all contact or visitation with a minor, only living in the same house. As such, there was no valid condition that children couldn't be "anywhere around him."

As to the 2nd two "violations", no evidence that defendant received any notice that those were conditions of probation. As such, they are not valid bases for revocation. Vacated.

State v. Jones. Appeal of conviction of cocaine possession with intent to sell.

The State offered evidence of Officer Tucker who stated he was able to identify the substance as cocaine by visual inspection and admitted a chemical analysts report showing the substance was cocaine, all without objection.

This was plain error. 1) under the 6th Amendment, a report of an analyst cannot be entered without their presence for cross examination. 2) Identification of cocaine by visual inspection is unreliable and inadmissible opinion testimony.

Other Cases.

State v. Capers. Cleveland County. Appeal of 1st degree murder conviction.

No error in admitting evidence that, upon arrest, defendant was shackled. Case law forbids allowing a criminal defendant to appear before a jury in bonds. No similar protection, however, from the jury learning that he was in bonds at arrest.

No error under 403 in allowing testimony of officer who said the defendant said, upon arrest, "if [you] would have waited until twelve midnight that we would have been late, and he said that, yeah, I would have been gone and you would have never saw me again." Flight is admissible evidence of guilt. Defendant argues that this was "an empty boast by a shackled man." Nonetheless, the statements shows consciousness of guilt (like flight) and is admissible.

No confrontation or hearsay problem with a victim's (one who got shot but didn't die) mother testifying that victim told her in hospital that the defendant did it.

The court found that this was an exception to hearsay as a presence sense impression, as it was made less than an hour of the shooting, broadening the presence sense impression exception from a few moments to an hour.

State v. Ford
. Mecklenburg County. Appeal of motion to suppress evidence obtained during a traffic stop.

Sole issue is whether the stop was valid. Officers may conduct a traffic stop if there is "reasonable suspicion to believe the defendant committed a traffic violation." Officers saw a car during patrol at 10:00pm, again a little later, and then a third time at 1:45am. The officers followed the car and the license plate appeared not to be lit and he couldn't read the tag. They turned off their lights to verify that the tag lights were out. Then, they stopped the car and cited the defendant for failing to maintain a properly functioning tag light (and eventually found a bunch of other bad stuff and got him for that too).

Defendant put on evidence from the car rental place that the car was fine when the car was rented and when it was returned. Court held that this didn't directly contradict the officer's testimony. As such, sufficient reasonable basis for the stop.

The court also notes that, while the defendant argues the stop was pretextual, the objective facts, rather than any subjective motivation, is the standard the court uses in making these determinations.

State v. Foy. New Hanover County.

During traffic stop for DUI, officer, with defendant's consent, went to his car to get the defendant's cell phone so that he could call his wife for a ride. While there, saw, in plain view a .357 revolver. The officer then arrested the defendant for carrying a concealed weapon and search the truck, finding open containers, drugs, and other guns.

Issue: Upon finding the 1st gun, could the officer continue searching under Gant.

Under Gant, an officer may search a vehicle incident to arrest "if the arrestee is within reaching distance of the passenger compartment at the time of the search or 2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Here, the Defendant was absent, but under prong #2, the officers had reason to believe that evidence related to the charge of carrying a concealed weapon could be found in the truck (i.e. other weapons, a receipt, or other evidence that can show ownership).

State v. Hernandez. Rockingham County. Appeal of convictions for assault with a deadly weapon with intent to kill inflicting serious injury, attempted 1st degree murder, and armed robbery. Challenge to denial of motion to suppress.

Defendant was a passenger in a car during a New Jersey traffic stop. New Jersey officers observed a car following too closing and making erratic lane changes. During the stop, the officer became suspicious because the men (5 Hispanic men were in the truck) gave conflicting stories of the itinerary, had no luggage for their NC to NY trip, and had no identification or driver's licenses. The driver of the car consented to a search, on a Spanish language form. During the search, they found a loaded gun. All men were arrested and, during further search, evidence of the robbery (wallet, jewelry, firearms) were found in the truck.

NC SBI guys flew up to New Jersey and interviewed the Defendant. Defendant signed a Spanish Miranda Waiver and made incriminating statements. Defendant challenges admission of the evidence and the statements, challenging the search and the Defendant's arrest.

1st, traffic stop was legal, as there was reasonable suspicion to believe a traffic violation had occurred--to wit, following too closely.

2nd, stop must not be unreasonably prolonged. The length of detention must be that necessary to deal with the articulable, reasonable suspicion. A basic rule, is you can't ask to search if the only suspicion is the traffic violation. Here, additional suspicion arose based on the inconsistent stories and lack of identification. The length of stop (up to the consent) was an hour and ten minutes. Defendant argues this was unreasonable. Here, delay not unreasonable since all occupants lacked identification and he could not simply issue a citation and let them go on their way.

As such, there was reasonable suspicion to prolong the stop and ask for the search.

State v. Hunter. Union County. In 1st degree murder case, held motion to suppress confession as involuntary was properly denied.

First, no error in executing a search warrant that had the wrong address listed on it. No problem with police executing a one address, even though the magistrate's order indicates that they could search a different address. This was OK because other designations were sufficient to establish with reasonable certainty what premises are to be searched. The warrant gave specific directions.

Second, defendant's Miranda waiver was valid, despite evidence that he had used crack prior to confessing, as the officers reported that the defendant denied being under the influence and the Defendant seemed cognizant during the interview of the meaning of his words.

Third, sufficient evidence of the aggravating factor "extremely heinous, atrocious, or cruel" where the victim was very old, the defendant took advantage of a position of trust, and the death occurred by stabbing, beating, strangulation, and finally impaling with a golf club in the victim's back and chest.

Fourth, no error in failing to grant mistrial after prosecutor called the defendant a "liar" during closing repeatedly. While clearly improper, they didn't reach the level of prejudice necessary to grant a mistrial.

State v. Paterson. Forysth County. DUI appeal. At trial, Defendant informed the judge that he had fired his attorney and wished to proceed pro se. His attorney had not filed a motion to withdraw. The judge continued the case and then allowed the attorneys to withdraw.

The Judge then went over the Defendant's right to a court appointed attorney and then had him sign a form Waiver of Counsel. Defendant signed the waiver, but did not check the boxes the form required for exactly what he was waiving (either appointed counsel or all legal assistance).

First, the waiver form is not mandatory, as long as there is a record of adequate waiver. The failure to check either box does not render the waiver invalid.

Second, the inquiry for waiver was adequate as the judge explained the charges and potential punishments and informed of the right to counsel, even though the specific colloquy laid out in State v. Moore (2008) was not followed.




Thursday, December 23, 2010

2010 Capital Trials in Review

Death Verdicts
  • Timothy Hartford, Forsyth County, Death (November)
  • Stephen Buckner. McDowell County, Death (November)
  • Andrew Ramseur, Iredell County, Death (June)
  • Michael Ryan, Gaston County, Death (May)
Life Verdicts
  • Edwardo Wong, Catawba County, Life (November)
  • Dexter McRae, Cumberland County, Life (October)
  • Travis Ramseur, Iredell County, Life (September)
  • Carlos Keels, Robeson County, Life (June)
  • Samuel Cooper, Wake County (April)
  • Abdul Shareef, Cumberland County (March)

Other Life Cases
  • Demetrius Montgomery, Mecklinberg County, case declared non-capital during trial by judge due to police misconduct (August)

Tuesday, December 21, 2010

NC Supreme Court Criminal Decisions, Dec. 21, 2010

The Supreme Court only issued one criminal decision today.

State v. Jihad Rashad Melvin, from Onslow County.

In a First Degree Murder case, the trial court failed to instruct the jury that it could not convict the defendant of both 1st degree murder and accessory after the fact to first degree murder. The jury convicted the defendant of both and the trial judge vacated judgment on the after the fact count.

The Court of Appeals ordered a new trial. Read post here.

While murder and accessory after the fact are mutually exclusive offenses, the Supreme Court took away the appellate relief, stating that the error was harmless.

Monday, December 13, 2010

Poll: North Carolinians Question the Death Penalty


A new poll, released today, indicates that a majority of North Carolinian would consider ending the death penalty. These concerns are fueled by concerns over wrongful convictions and the indiscretions of the SBI lab, as well as the enormous cost of the death penalty.

  • 68% of respondents said executions should be halted in light of the SBI findings;
  • 58% opposed death in sentences involving racial bias
  • 64% support life without parole over the death penalty and had doubts about the $11 million a year tab for the death penalty

As reported here, on the Public News Service:

"Mark Kleinschmidt, executive director of the Fair Trial Initiative in Durham [which released the poll], explains the poll results.

'North Carolinians are saying two to one: 'Don't execute anyone until we can be sure that all the evidence was good evidence, and the testing points to the guilty party.'

...In the poll, 80-percent of respondents identified themselves as either moderate or conservative

Advocates for ending the death penalty claim that doing so would save $11 million a year in capital punishment costs to the state. Kleinschmidt explains why it's so expensive."

Sunday, December 12, 2010

SBI cheating leads to dismissal of murder charges in Durham County

In Durham on Friday, Judge Orlando Hudson threw out decade old murder charges against Derrick Allen after it came to light that the SBI hid laboratory reports showing that alleged blood evidence wasn't blood at all.

The blood was key evidence tying Mr. Allen to the crime. The SBI provided evidence to the defense showing initial tests indicating that the substance was blood, but hid more sophisticated, confirmatory testing that showed no blood was present.

SBI agent Jennifer Elwell denied wrongdoing and stated on the stand that she viewed the State as her client, showing her bias. She also stated she hadn't read much of the crime lab audit that targeted her section, despite Attorney General Cooper's public stance behind the audit. This shows that the lab agents aren't being trained on, nor having their behaviors modified due to the audit.

Allen had wrongfully spent over 10 years in jail, maintaining his innocence the entire time.

Will the state seek criminal charges against the SBI agent who stole 10 years of Mr. Allen's life?

Tuesday, December 7, 2010

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

Reversals and Other Interesting Cases

State v. Johnson.

Insufficient evidence of attempted robbery with a firearm, where no evidence of intent to rob. Defendant came to the victims door with a gun and tried to get in and a firefight ensued. Only evidence offered by the state was that the Defendant came by a few days before, presumably casing the joint. This was insufficient evidence of intent.

Insufficient evidence for felony breaking and entering, as no, based on above, inadequate evidence of intent to rob (the charged predicate felony). Jury verdict of misdemeanor entering (which has no intent to commit a felony inside requirement), stands.

State v. Potts. Appeal of possession of cocaine case, where cocaine was found in a size 8 1/2 Nike shoe.

(1) Officer testified that he knew what defendant looked like based on seeing pictures from prior arrests. Issue not preserved because no proper objection.

(2) Officer testified that another officer told him that the defendant wore an 8 1/2 shoe. Court found that this was offered as corroboration of "anticipated testimony" (that seems like a violation of the rules of evidence anyway, but....). The other officer later testified and did not say that the defendant wore an 8 1/2 shoe. Because this impermissible hearsay was admitted and is prejudicial, the court orders a new trial.

State v. Williams. Conviction for possession with intent to sell cocaine and habitual felon.

SBI analyst testified about the cocaine being cocaine. Turns out, she wasn't the one that performed any of the test and was just reading someone else's result. This violates the 6th Amendment right to confrontation (Crawford).

New trial.

Other Cases

State v. Baker. Appeal of carrying concealed gun and possession of firearm by a felon.

Defendant was spotted on foot near a nursing facility that had been broken into the night before. Officer approached defendant and asked him questions. Defendant smelled of alcohol and was "looking around." The officer did a pat down and found a gun.

The trial court failed to make findings of fact. There were material conflicts in testimony on whether or not the defendant was seized. (The officer turned on his blue lights before approaching defendant, a total of four officers were present (show of force)). The trial court's failure to make findings of fact is thus fatal to the validity of its denial of the defendant's motion to dismiss.

Remanded for findings of fact.

State v. Bedford. Appeal of 1st degree murder conviction.

No error in failing to instruct on 2nd degree murder. Defendant was high on crack when he hit his wife numerous times with a 2x4, stabbed her, and slit her throat, causing her death. Court did not err in failing to instruct on 2nd degree murder, because ample evidence of premeditation were present--in the brutality of the crime and prior threats--and intoxication alone doesn't negate this.

No error in submitting photographs of the decomposing corpse (the body wasn't found for some time) under 403. These appropriately illustrate testimony of detectives who found the body.

State v. Blackmon. Appeal of convictions for felony larceny and habitual felon. Defendant stole a computer and, because he was a habitual felon, was sentence to 10+ years.

Defendant failed to preserve his motion to dismiss by not renewing his motion at the close of all evidence.

No IAC for this, as there was sufficient evidence for the jury to find the larceny.

No inconsistent verdicts in the jury hanging on breaking and entering, but convicting on felony larceny (that was a felony on the theory that the larceny was committed during a breaking and entering)..

State v. Clark. Appeal of judgment for break and enter motor vehicle, attempted larceny, injury to personal property and habitual felon status.

The indictment charged defendant with breaking and entering a motor vehicle, with intent to commit larceny of the same motor vehicle.

To be convicted of felony breaking and entering a motor vehicle, the defendant must have the "intent to commit any felony or larceny therein." Defendant argues that the "therein" requires the intent to commit a felony or a larceny other than theft of the car, as a theft of a car could be completed not within the confines of the car. Court rejects this argument. No reason a defendant cannot be charged with both felony larceny of a motor vehicle and felony breaking and entering a motor vehicle with the intent to steal the vehicle.

Sufficient evidence for felony larceny in the truck being worth more than $1,000, as the owner and two officers both testified they believed it was worth more than $1,000.00.

State v. Crandell. Defendant and another man had a shootout at a BP. An innocent bystander was shot and killed. Defendant convicted of 1st degree murder.

.32 and .40 caliber shell casings were found at the scene. A .40 caliber pistol was later seized from the defendant and a .32 at the other man's residence.

Both a .40 caliber (11.4g) and a .32 caliber projectile (4.54g) was found in the decedents car. A fragment of 6.2g was found in his head. An SBI lab agent testified at trial that the fragment was consistent with a .38 caliber or larger gun.

1) Sufficient evidence of guilt. Sufficient evidence presented showing Defendant was one of the shooters and was using a .40 caliber. Evidence sufficient on malice, premeditation, and deliberation as the shooting arose from a confrontation at a club, earlier in the evening, and the defendant firing at the other man at the BP first, without further provocation. This is sufficient for premeditation and deliberation--intent that then transfers to the decedent.

2) No error in allowing the lay testimony of a detective about the relative weights of the bullets.

3) No error in allowing SBI expert to testify that the bullet in the decedents head could not have come from a .32, as it was heavier than a 32 and was just a fragment.

State v. Daniel.

Appeal of DWI conviction.

A DWI defendant has a right to pretrial release if "A sober, responsible adult is willing and able to assume responsibility for the defendant." Under State v. Knoll, a DWI must be dismissed if defendant's detention is prolonged in a way that prejudices a defendant's ability to gather evidence.

During arrest, the officers gave defendant's car to a friend of hers, who drove directly to the jail.

Here, defendant was detained nearly 24 hours, even though a friend came to get her within an hour or two of her arrest. The magistrate wouldn't release her to the man, because he had alcohol on his breath and stated that he would only release her to a woman. While the detention was inexcusably prolonged, the court found there was no prejudice, because her BAC was .17, she said no when offered to contact an attorney, and her friend was given access to her and able to observe her during those critical post-arrest periods.

Judge Elmore Dissented:

The Defendant's friend was a sober, responsible adult, evidenced by the officers releasing the car to him. The magistrate refused to release her to her friend solely on the basis of his gender, not his condition. This failure to release caused irreparable prejudice, as any opportunity to gather evidence that she was not legally drunk was gone by the time she was released the next day.

State v. Dobbs. Defendant convicted of possession with intent to sale a sch. III substance (hydrocodeine), sale of a schedule III controlled substance, and trafficking in a sch. III controlled substance. Defendant sold 8 hydrocodeine pills (a prescription drug) to an police agent.

Court found there was sufficient evidence to prove trafficking by sale or delivery of 4-14g of hydrocodeine (8 pills. Yes, 8 pills is "trafficking"). Defendant was sentenced to a total of 70-84 months in prison on the 3 counts arising out of the one sale.

State's evidence rested on a lab analyst who weighed the pills, checked them against the book, and conducted scientific tests of one of the pills. Defendant argues that this was insufficient, since she didn't perform scientific tests on all the pills. Defendant did not cross on the sufficiency of the sample or argue that it was insufficient. As such, the argument is dismissed. Even if he had, the court went on to find this was a sufficiently reliable sample.

State v. Dubose. Appeal of conviction for conspiracy and for firing a gun into occupied building.

Facts were that defendant shot at another student outside a school (apparently to scare him as part of gang activity) and the bullets hit a brick a column of the school.

Sufficient evidence of conspiracy where defendant was with others, argued about who was going to shoot the gun, and all went together to do the shooting. Defendant arguments there was no evidence of intent to fire into occupied property, as the victim was standing outside the building. Caselaw establishes that a bullet going into an exterior wall is adequate for shooting into occupied property. Because the victim was standing near the building, there was a substantial likelihood that the bullet would enter the wall. As such, there was adequate evidence of a conspiracy to fire into occupied property.

The court did err for making a finding of the aggravator of gang activity, as there was no notice of this as aggravating and the sentencing was made outside the defendant's present (when the court drafted the judgment). Remanded for re-sentencing

State v. Mackey. Appeal of assault with deadly weapon and discharging a weapon into occupied property.

Held: (1) State failed to give the defendant proper notice of intent to prove aggravating factors for sentencing. The state must give written notice at least 30 days prior to trial. During plea negotiations, the state sent a letter that is not a part of the record. As such, insufficient evidence of the notice. (But noting that a letter could have been adequate notice). Remanded for resentencing.

(2) Because defendant was a passenger in a car and asserted no possessory interest in the vehicle or its contents, he had no standing to challenge the legality of a search.

State v. Treadway. Appeal of conviction for 1st degree sex offense.

(1) No error in admitting testimony of child's grandmother that the child told her she was molested, as it was admissible for the non-hearsay purpose of explaining the grandmother's subsequent conduct--telling the child's parents so medical treatment could be obtained. Further, these statements corroborate the child's trial testimony.

(2) Social worker interviewed the victim and diagnosed the victim with "sexual abuse." This was improper, as there was no physical evidence of abuse and such testimony essentially means, she talked to the victim and believes her. She also testified that the child's behavior was "consistent with a child who had been sexually abused." That was an appropriate, permissible statement. Because of this and other strong evidence, the admission of the "sexual abuse" diagnosis was not plain error.

(3) The indictment specifically alleged that the sex offense occurred by digital penetration. The jury instruction did not specifically include a requirement that the jury find digital penetration. The trial court may only instruct on sex acts supported by the evidence. The fact that the trial instruction was on digital penetration, as well as other sex offenses, was not error.

(4) Satellite-Based Monitoring: the court incorrectly found that 1st degree sex offense was an aggravated offense (mandating lifetime monitoring). (Aggravated offenses under 14-208.6(1a) required the child to be under 12, 1st degree sex offense allows children under 13). Remanded for re-sentencing on the other possible SBM grounds.

Sunday, December 5, 2010

Only Words?

An article in the N&O today details the lack of progress in cleaning up the SBI.

The bad news from the audit of the serology department of the crime lab should spark a complete audit of the entire lab. Instead, there's been a lot of noise and not much happening. Will serious audits and changes occur? Will the new Republican legislature put pressure to fix this, when "bad government" is affecting the least powerful?

Read the article here.

Wednesday, December 1, 2010

Life in Albert Ramos case

Scotland County, North Carolina.

On Monday, Albert Ramos pleaded guilty, at the end of jury selection, to two life sentences. At trial, he faced the death penalty.

The story is reported here.