Tuesday, December 27, 2011

NC COA Decisions, 12/20/2011

Reversals.

State v. Abbott.  New Hanover County. Appeal of larceny by employee conviction.

Trial court erred by allowing state to amend indictment by deleting the word "incorporated." The victim was an unincorporated association. This change was a substantial alteration of the indictment. This was not waivable. Vacate the judgment.

State v. Brown. Henderson County. Appeal of denial of motion to suppress evidence of impairment in a DWI stop. Defendant alleges stop was illegal.

Held: stop was illegal. Officer saw defendant's car pulled off on the side of the road. He heard some yelling and car doors slamming. Then, the car accelerated rapidly back onto the highway, but did not speed. This did not give reasonable suspicion to stop, based on his belief that they might be suspects in a robbery.

State v. Lynch. Chatham County. Appeal of RWDW and 2nd degree kidnapping.

Trial court erred in refusing to admit certified copies of the complaining witnesses criminal record to be used by the defendant to impeach the eye-witness. Rule 609(a) permitted defense to impeach the victim. This error was prejudicial, since defendant was impeded from impeaching the state's key witness, who had misrepresented his criminal record before the jury.

Admitting priors under 609(a) is not in the discretion of the trial court. New trial.

Judge Bryant dissents, finding no prejudice due to eye-witness admitting to these types of offenses on the stand.

State v. McDowell. Cleveland County. Appeal of breaking and entering into a motor vehicle.


To prove b&e of a motor vehicle (14-56), state must prove that there was a breaking and entering, without consent, into a motor vehilce, containing goods of value, with the intent to commit a larceny or felony within.


The state entered no evidence of anything of value in the car that was not affixed, thus insufficient evidence.


Other Cases.

State v. Clowers. Wake County. DWI appeal.

First, defendant challenges admission of intoxylzer prtintout and affidavit from analyst on hearsay and foundation grounds. Defense counsel only made a general objection and it was thus ineffective. Error is lost.

Second, sufficient evidence (readout of .15 BAC).

Third, no error in refusing to give an autonomism or unwillfulness instruction, where no evidence to support.

State v. Crawley. Durham County. 1st degree murder conviction.

First, defendant challenges admission of cell phone records without sufficient authentication. A custodian of records from the cell company produced the records and said they looked like his companies records, but he did not produce the actual CD with the records on them. Court found this sufficient to authenticate from circumstantial evidence.

Second, no error in allowing jury, in deliberations, to hear parts of tapes entered into evidence that were not played for them during the case. No error and any failure to the court by not providing an opportunity for the defense to re-open and enter rebuttal evidence was waived, as defense did not make such a request.

State v. Johnson. Currituck County. Appeal of cocaine trafficking conviction.

During a traffic stop, police find cocaine in the backseat of a vehicle. Three people are in the car; defendant is the only person in the back seat. Also found a rock in defendant's sock. Defendant made a run for it and, on the way, dropped another bag of cocaine. A co-defendant testified at trial that he and defendant were drug dealers and it was tehre drugs.

1) Sufficient evidence of constructive possession (items found in close proximity to defendant, other drugs found on defendant's person, and co-defendant testified they were selling it together).

2) No error in court failing to intervene ex mero motu when the prosecutor said:

"Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you that when you try the devil, you have to go to hell to get your witness. When you try a drug case, you have to get people who are involved in that world. Clearly the evidence shows that Robert Hall was in that world. He’s an admitted drug dealer and admitted drug user."

Court found that the prosecutor wasn't improperly calling the defendant a devil, just making an analogy.

3) Court refuses to rule on Harbison issue (attorney admitted guilt to RDO in closing) and leaves it for being raised in an  MAR.


State v. Mabry. Stanly County. Appeal of re-sentencing.

Court failed to find 4 mitigating factors. COA found they were not uncontradicted and manifestly credible, thus no error.


State v. Self. Buncombe County. Appeal of satellite-based monitoring order for life (SBM).

Held that Rules of Civil Procedure do not apply to SBM hearings, even though they are a civil regulatory scheme. Defendant had objected that there was no subject matter jurisdiction as no proper complaint was brought.


Thursday, December 22, 2011

Death Penalty Trials 2011, Year in Review

Not Guilty of 1st Degree Murder:
Michael Mead, Mecklenburg County (acquitted)
Robert Stewart, Moore County (convicted of 2nd degree murder)
Brandon Gross, Buncombe County (convicted of 2nd degree murder)

Life without Parole by Jury:
Danny Thomas, Columbus County
Shelton Mills, Pitt County
Joshua Stepp, Wake County
Larry Robinson, Robeson County

Less than Death by Other Means 
Melba Slaydon, Randolph County (plea to 1st degree during jury selection)
Ebony Watson, Lee County (plea to 2nd degree during jury selection)
James Richardson, Pitt County (case declared non-capital after conviction)
Dennis Mills, Alamance County (plea to 1st degree during jury selection)

Mistrial:
Al Bellamy, Iredell County (judge declared case non-capital after ruling on mistrial, due to state's hiding of evidence)

Death Verdicts:
Tony Summers, Guilford County
Danny Hembree, Gaston County
William Robinson, Stanly County

Life in Robeson County

Yesterday, a jury returned a verdict of life in the sentencing of Larry Robinson in Robeson County.

Press about the case found here.

Wednesday, December 14, 2011

Breaking News

Michael Peterson granted new trial in Durham!

Governor Purdue Vetos Racial Justice Act Repeal

Today, Governor Purdue vetoed the Racial Justice Act Repeal.

Governor's Veto Message:


“I am – and always will be – a strong supporter of the death penalty. I firmly believe that some crimes are so heinous that no other punishment is adequate. As long as I am Governor, I am committed to ensuring that the death penalty remains a viable punishment option in North Carolina in appropriate cases.”

“However, because the death penalty is the ultimate punishment, it is essential that it be carried out fairly and that the process not be infected with prejudice based on race. I signed the Racial Justice Act into law two years ago because it ensured that racial prejudice would not taint the application of the death penalty.”

“I am vetoing Senate Bill 9 for the same reason that I signed the Racial Justice Act two years ago: it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”

“Finally, it is important to be clear that the Racial Justice Act does not allow anyone to be released from prison or seek parole. Both my own legal counsel and legal experts from across the State have assured me that even if an inmate succeeds on a claim under the Racial Justice Act, his sole remedy is life in prison without the possibility of parole -- and even that would only occur if a judge first finds that racial discrimination played a significant role in the application of the death penalty." 

NC Supreme Court Criminal Decisions, 12/9/2011

State v. Slaughter. Per curiam reversal for reasons stated in dissent. See post on COA decision here.

State v. Starr. Affirming COA decision (here) of no error in failing to give jury a copy of the requested transcript during deliberations.

When a jury asked for a transcript, the judge told them that they couldn't have it because "we don't have the capability of real time transcripts so we cannot provide you with that."

Case law clearly says that giving transcripts is a discretionary decision and if the judge does not exercise discretion, the decision is erroneous. Here, the judge did not properly exercise his discretion and thus erred. However, given the error is raised on plain error, no relief, given that there is no showing of prejudice.

State v. Nabors. COA unanimously reversed a cocaine conviction, as only evidence of it being cocaine was visual inspection (here).

Defendant ran a claim at trial that Smith, rather than himself sold the drugs. He never contested that it was cocaine at trial. In fact, Smith testified for the defense that he brought cocaine and sold it to the state. This was sufficient evidence, even in the absence of lab testing. "When a defense witness's testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony in arguing that his motion to dismiss should have been allowed"


State v. Williamson. MAR was remanded by COA to trial court for failing to make written findings. SC noted that the trial court did make written findings and sent it back to COA for further review. See old post here.

Cline Publicly Admonished for Filing False Motions

Cline, from N&O.
During a hearing today, Judge Hardin, a former prosecutor, admonished DA Tracey Cline for filing false motion. Cline apologized.

Cline filed false motions seeking visitation records from prison records of inmates, claiming that she was under a deadline to file a response to an MAR. The truth, no such MAR had been filed by the defendants.

These were the same cases that formed the basis for motions Cline filed challenged the integrity of Judge Orlando Hudson--a motion that were dismissed as utterly groundless.

Cline withdrew the request for the records.

A quiet groundswell is growing in Durham suggesting that Cline should be removed for her unethical actions. It is beginning to erupt, as Attorney Scott Holmes came forward in the last few days to call for her removal.

See article on Holmes calling for resignation and on Hardin admonishing Cline.

Monday, December 12, 2011

NC Court of Appeals, Criminal Decisions (Dec. 6, 2011)

Reversals.

State v. Gregory Brown.  Forgery appeal.

Defendant presented a check for payment, that was a forgery. He told police that a "light-skinned black dude" named J gave m the check for $655 and said I could keep $50 if I cashed it for him.

Held: Insufficient evidence. Despite the check having some irregularities on the face and the other circumstances, insufficient evidence of knowledge and intent by defendant to cash a forged check.

State v. Gillikin.  Appeal of 2nd rape, false imprisonment, and misdemeanor larceny conviction.

During deliberations, the jury sent out a note after 4 hours that "We cannot reach a unanimous decision on 4 of the 5 verdicts." Judge instructed the jury that he read their note that they couldn't reach a unanimous verdict and "in a case such as this it's not unusual." The court then "reminded" the jury that "it is your duty to find the truth in this case and reach a verdict." Instructed them to go back and "deliberate until you have a unanimous verdict." 90 minutes later, they came back guilty.

Held: This charge can reasonably be construed by a juror to surrender his well-founded convictions. It improperly coerced a verdict. Prejudicial. New trial.

Also held that prosecutor violated rules of professional conduct in it's closing, by name calling, expressing opinion the defendant was a liar. "The entire tenor of the prosecutor's argument was undignified and solely intended to inflame the jury." Court noted that, had the trial court not intervened ex mero motu (as it did), this would be cause for error.

Other Cases. 

State v. Myron Britt. Appeal of 1st degree murder conviction. Click here to see our post from the trial.

Defendant's wife was shot and killed with a single .25 bullet while staying the night with a woman she was caring for. There were no signs of forced entry or theft. Evidence against the husband was that he had borrowed a .25 pistol from a relative and it was now missing, that a .25 round was found in his car, and that a bullet that had previously been fired from that .25 (into a baseboard by accidental discharge) matched the bullet in his wife. State's theory was that the murder was to collect insurance money and pay off debts.

Defendant put on evidence of an alibi (his kid was home and never heard him leave that night), ballistic experts that testified the bullet didn't match, and evidence of a happy marriage and ability to pay debts, using his business income and his wife's teaching income.

First, defendant argues that State's ballistic evidence should not have been admitted as unreliable under 702. First, held that forensic toolmark identification is sufficiently reliable, has been admissible for decades, and defendant did not offer any "new" evidence as to why it should not be admissible. Particular evidence was qualified by training and experience.

Second, defendant objects to evidence of false information in a 5 year old mortgage application should not have been admitted under 404 and 403. Court found it relevant to motive, as state's theory was financial hardship motivated the killing.

State v. Oliver. Appeal of conviction for possession of stolen vehicle.

Car stolen at the night before. At 1:00pm the next day, defendant pulled over driving the car, with two passengers. Defendant had a valet key and said the car belonged to "Joe." Defendant later said he rented the car near Urban Ministries from a crack head. Defendant testified and said he didn't know it was stolen and planned to bring it back at 7:00pm, when he was done renting it. Defendant testified that crack-heads often rent their cars out in the area to buy crack.

First, no error in failing to instruct on unnauthorized use, which the NC SC has ruled is not a lesser included.

Second, sufficient evidence of knowledge of stolenness, given that it was rented for a day by a crack head and, in his statement to police, he said he "figured the car was stolen."

State v. Sprouse.  Appeal of statutory rape (5 counts), sex offense (4 counts), indecent liberties (9 counts) and sexual activity by a substitute parent (9 counts).


Substantial evidence presented of all counts in the form of the victim (13 at time of offense) testifying to all the acts occurring. The slightest penetration is all that is necessary to prove intercourse.


No abuse of discretion in the judge denying his motion to sequester witnesses, despite one instance of a witness conforming her testimony to another witness (about the length of stay in a hotel).


Last, trial court committed plain error in allowing DSS social worker to testify that they "substantiated" sex abuse against A.B. by defendant. This is classic impermissible vouching. However, no objection, so only get relief if so prejudicial that it results in fundamental error, and court finds no such prejudice here.

Friday, December 9, 2011

Vedict in Stanly County

Today, the jury returned a verdict of death in the case of William Robinson.

Press here.

Jury Deliberating on Death in Stanly County

Yesterday, the state and defense gave closing arguments in Stanly County on whether William Robinson should live or die.

The jury is out deliberating now.

Tuesday, December 6, 2011

Stanly Jury Convicts Robinson

On Thursday, a jury found William Eugene Robinson guilty of the first degree murder of Keith Crump and the attempted murder of Robert Tucker, III. The jury convicted both on the theory of felony murder and on premeditation and deliberation. Robinson was also convicted of robbery with a dangerous weapon, larceny of a firearm and possession of a firearm by a convicted felon.


This jury has found that Robinson shot and killed Mr. Crump while robbing a store in Albemarle.


The state began putting sentencing evidence on at that time. The jury will next have to decide whether Robinson should live or die.

Monday, December 5, 2011

Judge Fox Dismisses Cline's Claims

Judge Fox dismisses Cline's Allegations
Tracey Cline, the elected DA of Durham County, filed a series of motions asking that Senior Resident Judge Orlando Hudson be removed from high profile murder cases. Her claim: he is biased against her and is treating her unfairly.

Judge Fox dismissed the claims, calling the evidence "woefully inadequate."

Cline's behavior has been increasingly erratic and problematic in Durham County. The News & Observer uncovered numerous incidents of her being less than candid with the court in it's Twisted Truth series. In the last few days, an allegation that she blatantly lied in a motion to Judge Hardin to gain access to records has come forth.


This, compounded with her decision to take on Judge Hudson and make scurrilous allegations against him, may be the death knell of her reign in Durham.


I'm sure this isn't over. Press below:

 

Thursday, December 1, 2011

Rebuttal Begins in William Robinson

In Stanly County, the state began rebuttal in the guilt phase of State v. Robinson.

Robinson presented evidence that his mother drank throughout her pregnancy and that both his father and mother have extremely low IQs. Robinson himself has borderline intellectual functioning. This had a major impact on Robinson's brain, resulting in a very low functioning adult. Robinson's lawyers have argued that Robinson did have the capacity to form the requisite intent to commit first degree murder.

The state has begun putting on state-paid experts who, while acknowledging Robinson's low function, state the belief that he could form the required intent.

If convicted, Robinson could face the death penalty.

Press here and here.

Monday, November 28, 2011

Senate Declares Itself Against Racial Justice in NC

Today, the Senate voted to repeal the Racial Justice Act. The Act provided the same tools against racial discrimination used in housing and employment discrimination to death row inmates. Under the law, if an inmate could show statistical discrimination in sentencing or in jury selection, his sentence could be reduced to life without the possibility of parole.

All North Carolina Democrats voted against the repeal, but the Republicans had there day in sweeping discrimination under the rug.

Two steps forward and three steps back...

Governor Purdue will have to decide whether to veto the legislation or not in the coming weeks.

Wednesday, November 23, 2011

Capital Murder Trial Continues in Stanly

In Stanly County, the state is putting on evidence in the case of William Robinson. If convicted, Robinson could face death.

Press here.

Monday, November 21, 2011

NC Court of Appeals, Criminal Decisions, November 15th

State v. Otto. Appeal of DWI conviction. Defendant appeals on grounds that the stop was illegal.

Officer stopped defendant leaving a Duck's Unlimited Banquet, because he had "heard there would be alcohol there." Defendant did not violate any traffic laws, but was weaving within her own lane (she did not cross any lines). Held: No reasonable suspicion for the stop. Judgment vacated and all evidence suppressed.

Judge Ervin dissents.

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

Defendant and his wife were going through a divorce. His wife had told others of his abuse and threats to her and her fears that he was going to kill her.

On the day of her murder, she told people she was going to pick up items from the defendant's house. That morning, someone else called the defendant and he insisted they not come over. Defendant was shortly thereafter seen buying gas and a gas can. He called and cancel a scheduled tennis match. A few hours later, police responded to a brush fire and found the victim's body doused in gasoline. Defendant's alibi was that he was at South Point Mall eating at Sbarros, although he was not on the videos there and there is no Sbarro's in the mall. He  told police he bought the gas for a distressed motorist. He later told a detective, ""it was his wife's fate to die," and "if I go to jail, I go to jail, that would be my fate."

First, held this was sufficient evidence.

State v. Surrett. Appeal of convictions for second degree burglary, conspiracy, felony possession of stolen goods, felony possession of stolen firearm, and accessory after the fact to burglary.

Defendant and some friends, while high on crack, broke into a trailer and stole a bunch of stuff. Defendant may not have gone inside.

Judge instructed that the jury could convict on a theory of accessory before the fact, aiding and
abetting, or acting in concert. Defendant argues that this instruction could have resulted in a non-unanimous verdict, as both aiding and abetting and acting in concert required him to go inside, but not accessory. This was not a problem as defendant could not be convicted on all three and his presence was only relevant to the way the state proved the charge, not the resultant conviction.

Second, not plain error to fail to instruct on voluntary intoxication, even though the defendant was drunk.

Third, error to convict as a principle and for accessory after the fact. That count is vacated.

Fourth, court erred in sentencing on two separate possession of firearm charges. If both stolen at the same time and possessed at the same time, you can't get a different count for each gun.

Friday, November 18, 2011

Jury Sentences Danny Hembree to Death

Today, a Gaston County jury sentences Danny Hembree to death for killing a teenager.

Hembree was on a crack binge during the incident and had a long history of childhood physical and sexual abuse. His attorney argued that these facts mitigated the case in favor of a life sentence, but the jury was unswayed.

Mr. Hembree will be transferred to death row at Central Prison.

Tuesday, November 15, 2011

DA's Beg Legislature to Ignore the Evidence and Repeal RJA

Susan Doyle
Susan Doyle with the NC Conference of DA's is asking the legislature to repeal the RJA. A ground-breaking, in-depth study showed widespread bias in the capital cases. Most notably was that DA's were striking black jurors disproportionately in almost every case.

The DA's have fought scrutiny into the racial content of their decision-making--going as far as moving to strike a black judge from hearing the case (even though they made no such motions in other cases hearing RJA claims with white judges-- see story here).

Now, they seek a purely political out. Rather than having these important issues of discrimination in our systems of justice resolved by judges, based on facts, they'd like the legislature to give carte blanch to ignore the facts, and get back to ignoring racial discrimination.

Another sad day in North Carolina.

See press here.

Campus Police Act Valid, Says NC Supremes

On the 10th, the NC Supreme Court issued one criminal decision.

State v. Julie Anne Yencer.

Defendant was arrested for DUI on Davidson Campus. She challenged, arguing that hte Campus Police Act violates the establishment clause, by delegating police powers in the hands of religious schools. The trial court held the Campus Police Act unconstitutional.


Applying the Lemon Test, held that there was a valid secular purpose, that the primary effect did not advance or inhibit religion, and that it did not unduly entangle the government and religion. The decisions relies largely on the fact that much of Davidson's mission is education/secular related, rather than religious.

Reversed.


Tuesday, November 8, 2011

9 Jurors Selected in Stanly County

The guilt phase of the capital murder trial of William Robinson is approaching in Stanly County. Nine jurors have been seated. The state and defense are still selecting the remaining six (three jurors and three alternates).

Earlier this year, in the nursing home shooting case in Moore County, a special venire of Stanly County jurors rejected first degree murder and found the shooter, Robert Stewart, was diminished and convicted only of 2nd degree murder.

Press here.

Buncombe Jury Rejects 1st Degree Murder

In the case of Brandon Gross, last week a jury rejected 1st degree murder and found him guilty of second degree murder. He was sentenced to a term of years.

If the jury had convicted of 1st degree murder, his only possible punishments would have been death or life without parole.

Friday, November 4, 2011

NC COA Opinions, 11/1/2011

Reversals.

State v. Barrow. Appeal of 2nd degree murder conviction.

Shaken baby case.

First issue is whether judge appropriately submitted 2nd degree murder to jury, as defendant argues no malice presented in the case. Here, judge instructed on 1st degree felony murder (child abuse) and 2nd degree murder. Defendant argues that a finding of no 1st degree would mean no 2nd degree, thus inappropriate to submit. However, to provide 1st degree felony murder by child abuse, state has to show use of a deadly weapon. Thus, jury could reasonably convict on 2nd and not 1st. Thus, no error.

Second, court did not err in allowing a doctor to testify that the fatal injuries occurred between 8:00am and 1:00p. Defendant challenges this as unreliable under Howerton and Rule 702. Court did not rule on that issue, but simply found the error, if any, harmless.

Third, state's argument of proof of malice was that, given the child's young age, shaking him showed malice -- reckless disregard for human life. Defendant argues that, for this reason, the state couldn't then use the same evidence to prove the murder was aggravated by the aggravating factor of a young victim. Court held: Thus, the State's theory regarding malice is virtually identical to the rationale underlying submission oft he aggravating factor that the victim was "very young and physically infirm[]." There is, as a result, a reasonable possibility that the jury relied on Jace's age both in finding malice and in finding the aggravating factor, which would violate N.C. Gen. Stat. § 15A-1340.16(d)."

Judge Elmore Dissents, on the 1st degree / 2nd degree issue, and would remand for retrial only on 2nd degree murder.

State v. Cannon. Appeal of felony possession stolen goods and firearm by felon.

Defendant, drunk, threatened some family members. They took his gun from him, held him down, and police came. Turns out, the 4 wheeler he had come to the get together in was stolen. Charged and convicted for this, communicating threats, and possession of a firearm by convicted felon.

Insufficient evidence of mens rea for the stolen goods. To prove possession of stolen goods, the defendant has to know or have reasonable grounds to believe the item is stolen and the state must prove it is worth more than $1,000. State's evidence showed that a Honda sticker was put on the Suzuki 4-wheeler, which shows intent to conceal it's identity.  This was insufficient to show knowledge, as the cosmetic changes were minimal, defendant did not hide his ownership, and no reason to believe the defendant was the one who made the changes. Trial court erred in denying motion to dismiss. Vacated.

State v. Carter.  Appeal of sex offense case.

1) Held adequate evidence of anal penetration.

2) No error in court refusing to allow social worker to testify that victim was "that, during therapy sessions, victim was “overly dramatic,” “manipulative,” and exhibited “attention seeking behavior.” Held that she was not qualified to render such medical opinions.

3) Court's refusal to admit statement of victim to therapist that "“I know [Defendant] wouldn’t do it. I know he’s coming home” as substantitve evidence (under hearsay exception of statement for medical diagnosis) was not error. No clear evidence that the child knew, when the statements were made, that the play therapist was working as part of medical treatment.

4) No error in trial court, in instructions, referring to child as "victim."

5) No error in trial court refusal to order psychological evaluation of the victim.

6) Error by trial court in failing to instruct on lesser included of attempted sex offense (in one of the counts). There was varying evidence on whether or not penetration occurred, and was thus entitled to instruction on attempt. New trial on that count.

7) Court erred by forcing defendant to enroll in lifetime SBM as 1st degree sex offense is not an "aggravated offense" as defined by the statute.

State v. Demaio. Appeal of trafficking in opium and obtaining controlled substance by fraud.

Defendant pleaded guilty, then appealed, challenging the underlying basis in fact and the voluntariness of the plea. A condition of the plea was that he be allowed to appeal a prior motion. Unfortunately, that motion could not be appealed. As such, defendant may take back his plea, as he didn't get the benefit of his bargain.
 

State v. Jones.  Appeal of drug case, finding NarTest (test to ID drugs) does not meet Howerton standard--at least in this case. Nice post on it from another blog here.

Other Cases.

State v. Rivera. Appeal of RWDW. People were robbed with a stun gun (one lady was stunned).

At trial, an officer testifed that the "potential for serious physical injury or death [from a stun gun] is minimal,” and the overall potential for serious physical injury or death [from a stun gun] would be consistent with being struck with a hand or foot.” Defendant moved to dismiss, arguing they had not proved that a stun gun was a dangerous weapon.

A dangerous weapon is one that "could have threatened or endangered the life of the victim ." If it is not a firearm, this is a question of fact for a jury (as long as a jury could reasonably so find).

"Corporal Takano’s testimony tended to establish that a stun gun is not a dangerous weapon in and of itself when properly used under controlled conditions. Corporal Takano did not testify that stun guns can never be considered dangerous weapons. In fact, Corporal Takano stated that stun guns are considered “less than lethal” weapons simply because they fall somewhere between hands and feet and firearms on the “force continuum.”

"Defendant also points to the fact that the Raleigh Police Department tested Taser-brand X26 stun guns on many of its officers. However, Raleigh police officers were tased by experienced professionals in an environment designed to minimize the risk of injury.... Moreover, our courts have consistently held that an object can be considered a dangerous or deadly weapon based on the manner in which it was used even if the instrument is not considered dangerous per se."

State v. Stokes. Appeal of aiding and abetting 1st degree sex offense, felony child abuse by sexual act, and first degree sex offense. Evidence included child testimony and physician testimony confirming the physical evidence of sex.

First, sufficient evidence of felony child abuse by sex act when one child (victim) only mentioned vaginal intercourse, but other child said he saw the defendant use other objects. This discrepancy was for the jury (to prove child abuse by sexual act, state must prove a sex act other than vaginal intercourse).

Second, defendant forced another child to commit sex acts against the victim. He was charged with aiding and abetting such crime. Defendant argues that, since he forced the other child, that child's defense of duress protects him.  "We find defendant’s argument to be both offensive and absurd."


Third, any error from victim's stepfather testifying about things she told him wasn't prejudicial, given the overwhelming proof of guilt.


Last, court erred in sentencing defendant to lifetime satelite-based monitoring, because he has not been classified as a sexually violent predator, is not a recidivist, and the court found that he did not require "the highest possible level of supervision." Remanded for new sentencing on that issue.


State v. Sullivan. Appeal of three counts of robbery with a firearm and conspiracy.



Sufficient evidence of conspiracy, where co-defendant testified that the group decided to commit a robbery and went out and committed one.  Sufficient instruction as the jury was instructed on acting in concert and at least 2 co-defendant's names were included.


No error in refusing to submit lesser offense of common law robbery. While no evidence was presented that defendant personally used a gun, there was unequivocal evidence that the robbery involved a gun.


After sentencing, defendant filed an MAR for a new sentencing hearing, based on new evidence that could have been presented at sentencing--namely defendant's PTSD. Court held no error in court summarily denying the MAR. The court sentenced the defendant in the presumptive range. The court need not depart from the presumptive range, even if mitigating factors are proven. No error.

Finally, court erred in ordering $640 in restitution, as that amount was not supported by evidence at trial.

Tuesday, November 1, 2011

Mills Sentenced to Life

Mills (seated) with his legal team.
In Alamance, today, the state accepted a plea of guilty to two counts of 1st degree murder, in exchange for a sentence of life without the possibility of parole.

The plea reduces the number of pending capital cases to 4 (Danny Hembree in Gaston County- in guilt, and Larry Robinson in Robeson County, Brandon Gross in Buncombe County, and William Robinson in Stanly County, all in jury selection).

Thursday, October 27, 2011

NC Court of Appeals Criminal Decisions

Reversals.

State v. Surratt. Forsyth County. Appeal of felony child abuse by sexual act, indecent liberties, and first degree sex offense.

At a prior child welfare hearing, a judge ruled that the children "were not sexually abused." The state made a motion in limine to exclude any reference to this hearing, to which the defendant did not object. At trial, a SS social worker testified that they investigated allegations of sexual abuse and removed the children from the home.

Held: It was ineffective for counsel to allow this testimony in without making the jury aware that the removal was based solely on neglect, not sexual abuse. This was not harmless, as the case rested solely on the child's testimony and there was no physical evidence of abuse. Further, testimony that DSS had "substantiated" the allegations prejudicially and inappropriately bolstered her credibility.

New Trial.

State v. Sweat. Buncombe County. Appeal of first degree sex offense and sex offense with a child.


First, here is the defendant's handwritten confession.

"Brickyard Road. She pulled out my p-e-n-d-s and sucked it. I said ―no but she wanted to t-y-e it. She l-e-n-k-s it. I had s-a-i-n-d ―no, but she want to, so she did it. For s-u-o-c-d. That happened two times. She put my p-l-a-n-s in her butt. B-e-a-c-k part we play on the bed and [Tammy] put her hand down in my pants, pull it out and t-y-e it or can I s-a-n-d, but she want to. I know she it out again. I s-a-i, ―This is not r-in-t' to her. She s-u-i-n-d things. She tried to put it in her butt that day[.]"

Defendant argues that there was insufficient evidence of sex offense with a child--the offense was based on fellatio. Defendant argues under corpus delicti, the only evidence of this offense is his confession and thus it must be dismissed. In non-capital crimes, you can convict on confession alone "if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime." Here, the victim did not deny fellatio and evidence that she told a DSS worker this happened came in (even though it only came in as corroboration, and didn't corroborate the in-court testimony...) Further, defendant had ample opportunity to commit these crimes.

Second, the jury, however, was improperly charged on the count of sex offense with a child. Defendant hasd four counts of sex offense. The court instructed on all four that they could find defendant guilty if they found he engaged in anal sex and/or fellatio with the child. There was evidence of mulitple instances of anal intercourse, but only of two instances of fellatio. As such, it was error and misleading to instruct on fellation on all four counts. New trial on the two counts of sex offense with a child.

Other Cases. 

State v. Holloway. Wake County. Appeal of habitual misdemeanor assault and habitual felon conviction. Defendant convicted for assault on a female. He had prior assault convictions, so was convicted for the separate offense of habitual misdemeanor assualt, a class H felony. He was then sentenced as a habitual felon, due to his three prior felony convictions, as a class C felon.

The upshot: his AOF, punishable by a maximum of 150 days, was converted to a C felony and he was sentenced to 108 months (9 years).

First, the habitual misdemeanor statute reads: "“[a] conviction under this section shall not be used as
a prior conviction for any other habitual offense statute." Defendant argues that it thus couldn't be used for a habitual felon--that the legislature couldn't have meant to turn a misdemeanor (simple assault on a female) into a class C felony. Not so, says the COA. Because habitual felony is a sentencing mechanism, not a seperate offense, it is not a "habitual offense statute."

"While defendant’s arguments are well taken, we note that the primary purpose of recidivist statutes such as these are “to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.”

State v. Pierce. New Hanover County. Appeal of possession of firearm by felon (PFF), 2nd degree murder, flee to elude arrest resulting in death, and possession of marijuana with intent to sell.

During a traffic stop, defendant fled and a high speed chase ensued. During the chase, an officer who was on the radio but not in direct pursuit swerved to avoid debris on the road (unrelated to the chase), lost control, went over the median, and died when he crashed into a tree. Once they caught the defendant, they charged him with drugs and a gun found in the car and second degree murder.

First, defendant challenges the Second Degree Murder conviction. The elements of 2nd degree are

1. defendant killed the victim;
2. defendant acted intentionally and with malice; and
3. defendant’s act was a proximate cause of the victim’s death.

First, the "very act of fleeing from the police certainly constitutes malice." Here, he fled, sped, ran lights, etc, all with knowledge that injury or death could result and manifesting depravity of mind and disregard of human life.

Second, even though the officer was not in direct pursuit and was, in fact, miles away, "the harm that befell him – was [not] so far beyond the circumference of Pierce’s reckless actions as to absolve Pierce of liability for Officer Matthews’ death."

Third, no error in refusing to allow the defendant to put on evidence and argue that "Officer Matthews was negligent in speeding to the pursuit and, therefore, was the cause of his own death," because contributory negligence has no place in the law of crimes.

Second, no error in the convictions for PFF.

Two guns were found: one on the highway and one during a search of defendant's house.

In the house, it was found in his closet, alongside paychecks with his name on it and other papers with his name on it. Further, his wife said he was "holding it for his brother." Sufficient evidence to prove constructive possession.

The other one was found on the highway. There were 3 people in the. Insufficient evidence to show that defendant, and not another occupant, owned that gun (or that it even came from the car). Vacated.

Third, defendant argues that a 1994 robbery was improper 404(b) evidence. In that case, defendant fled on foot and a co-defendant was shot and killed by police. It was relevant to knowledge because it showed prior evidence of flight and the dangers inherent in flight.

State v. Ross. Rowan County. Appeal of two counts of attempted first degree murder, two counts AWDWIKISI,  one count attempted RWDW, and one count of AOF.

First, defendant argues that the confrontation clause was violated when, at trial, one of the victim's testimony at a probable cause hearing and prior statements to law enforcement was admitted. 6th amendment not violated where declarant unavailable when defendant "had a prior opportunity to cross-examine the declarant."

"Defendant contends, however, that he had no meaningful opportunity to cross-examine Ms. Besies at the probable cause hearing because the various charges had not yet been joined, defendant's lead trial counsel had not yet been appointed, and his counsel at that time had not yet had an opportunity to review all the discovery... [O]ur courts have never held that discovery must be complete for a cross-examination opportunity to be adequate. Here, defendant was represented by counsel at the probable cause hearing (who was one of his trial counsel), he had the same motive to cross-examine Ms. Besies as at trial, and his counsel did in fact cross-examine Ms. Besies."

Statements to the law enforcement officers were properly admitted for corroboration, thus not affecting confrontation rights.

Second, it was error for the judge to submit aggravating circumstances to the jury not included in the indictment (even though notice was given to the defendant of the state's intent to submit them). Thus, trial erred in sentencing as aggravated. Remanded for resentencing.

State v. Watlington. Rockingham County.  Appeal of conviction for habitual impaired driving and being a habitual felon.

Defendant moved to proceed pro se during the habitual felon sentencing hearing. Defendant argues that the court erred in allowing him toe waive counsel without conducting a proper inquiry under 15A-1242. Court failed to conduct, so new trial on habitual felon. The fact that defendant clearly indicated he wished to proceed pro se and was familiar with the court system does not change the duty to comply with the inquiry.











Wednesday, October 26, 2011

Isaam Chaplin Case Continued

On Tuesday, the Chaplin case was continued in Guilford County, due to newly discovered evidence. The press is not reporting what this is, but the state asked for jury selection to be stopped and seated jurors to be sent home.

No word on when the case will be heard.

Tuesday, October 25, 2011

Two More Capital Murder Trials Begin

In Guilford County, jury selection began Monday in the Isaam Chaplin case. He is accused of robbing a brinks truck outside an Old Navy and shooting and killing the driver. Prosecutors have told the press they think they will have a jury in a week. Press here.

In Stanly County, jury selection is scheduled to begin Wednesday in the case of William Robinson. Robinson is charged with killing a store clerk. Press here.

Jury selection continues in the cases of Larry Robinson, Robeson County and Dennis Mills, Alamance County.

Danny Hembree, with his lawyers
Last Wednesday, evidence began in the guilt phase in the case of Danny Hembree, Gaston County. Jurors heard Mr. Hembree's confession this week--a confession he subsequently recanted. In the recording, Hembree describes killing one woman with a plastic bag so she wouldn't date black men and another "because he wanted to." Asked why he did it, Hembree said he felt both women were prostituting themselves for drugs. Press here and here.



Monday, October 24, 2011

Moore County Prosecutor's Decisions Cost State Big

There's been some press lately about the Robert Stewart capital murder case and how much it cost. Apparently, there has been reporting that it cost the taxpayers $550,000.

This figure comes from the court side and the defense side. The articles have largely left out the cost from the state's end--in law enforcement and district attorney assets that could have been spent doing something other than this case.

District Attorney Krueger
But nonetheless, there is an even bigger story not being told here. That figure, of $550,000, was driven almost entirely by District Attorney Maureen Krueger's decision to seek death. As a general matter, cases like this can be resolved at any point by plea. The trial was almost certainly moved by the state's refusal to negotiate. Further, the need for it to be a capital trial, versus a non-capital trial, was entirely within the state's discretion.

The story we're not being told is that that $550,000 figure is largely attributable to poor state decision-making. I mean, they didn't even get a 1st degree verdict out of this case. Is anyone surprised? People simply do not walk into a nursing home and shoot a bunch of old people when they are in their right mind...

I imagine the cost of this case could have been avoided by an early plea to the same result--a lifetime in prison--that came at the end of this trial. That decision was one that rested with the state.

This experience is repeated again and again across the state. A 2009 study by Duke Professor Phil Cook found that N.C. could save more that $11 million a year if the state stopped seeking death. And that's just in defense costs.

This doesn't include prosecution, law enforcement and court resource--all of which could be used to have more cops on the street preventing crimes and more prosecution of other crimes.

NC Court of Appeals Criminal Decisions, 10/4/2011

Reversals.

State v. Fox. Harnett County. Appeal of felony stalking conviction.


Defendant was convicted in 2009 for felony stalking for incidents occurring from 3/5/2009 to 4/7/2009. . From prison, he wrote a threatening letter to the victim and, after he got out, went to her house and threatened her some more. He was indicted for incidents occurring from 3/5/2009 to 2/8/2010 and convicting for stalking again. Appeals.

Held: conviction violates the double jeopardy clause.  The 2010 indicted offense includes conduct from the 2009 conviction which, on its own, is sufficient to prove violation. This subjected defendant to real jeopardy from a prior conviction. "Because the time periods of the “course of conduct” for both indictments overlapped, the same acts could result in a conviction under either indictment." Therefore, they were the same offense. Vacated.

Other Cases.


State v. Bowden. Mecklenburg County. State appeal of non-suit.

Defendant was charged of breaking and entering under an acting in concert theory. He was found on the scene and ran from police, after another man was found on the scene with items from a house in his hands and ran from the cops (he got away). After the jury returned a verdict of guilty, the judge dismissed on a motion notwithstanding the verdict. The state appeals.

The standard for granting a motion notwithstanding the verdict is if there is not substantial evidence for each element of the offense. "If the evidence is sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed."

Held that the court did not err in dismissing the charges.  "A defendant’s presence at the scene of a crime is not evidence of his guilt, even if the defendant is in sympathy with the criminal actor and makes no attempt to prevent the crime...In sum, the only evidence that could link Defendant to the break-in was (1) his presence in the back yard of the home just after the unknown man was seen carrying stolen property in the area, and (2) his flight from the crime scene when he saw the police officers."

State v. Collins. Craven County. Appeal of conviction for possession of marijuana and paraphernalia.'

First, the major piece of evidence in the case was the video from a controlled buy conducted by an informant, who was not available at trial. Defendant challenges that this was not properly authenticated. An officer testified that he rigged it up before and after. This is proper authentication.  The fact that persons on the video are unavailable is irrelevant, because the evidence was not offered for illustrative purposes, but rather for substantive purposes. If offered for illustrative purposes, a witness has to say, "this is a fair and accurate representation" of what something looks like. If offered for substantive purposes, all you have to establish is that it is what it says it is-- here, a video of a drug transaction.

Second, no plain error in officer saying that the defendant is the guy on the video. Here, officer had significant prior dealings with defendant and was in better position than the jury to give the opinion that it was the defendant on the video (thus meeting the test for a lay opinion: rationally based on perception and helpful to the jury).

State v. Garcia.  Wake County. Appeal of conviction for trafficking.

First, during sentencing, the jury requested to review a witness's trial testimony. The court has discretion to make this decision. After hearing the request, the following exchange occurred.  court stated

COURT: The jury has sent out a request for a copy of Officer Mendez’s testimony. I intend to call them in and tell them it is their duty to recall the testimony in this case, it is not prepared in a form that can be submitted to them at this time."

DEFENSE: Would you consider letting them know that it can be read to them.

COURT: I don’t intend to read it to them or have it read to them. It’s their duty to recall the evidence that they have heard. It’s not prepared in a form that can be submitted to them, so I’ll just tell them they need to recall the evidence.


COURT: (to Jury): [Y]ou have indicated in this note that you’re requesting a copy of Officer Mendez’[s] testimony...That is not prepared in a form that can be submitted to you. The Court Reporter takes it down, but she is taking it down for later typing everything, but it’s not done immediately, so it is not in a form that could be submitted to you. It is your duty to recall the evidence based on your recollection of the evidence that you have heard and the testimony that you have heard in this case.


Under State v. Ashe, if the court believes it is unable to provide the transcript to the jury, it is not exercising it's discretion, and a reversal is required. If the court is refusing to provide it by exercising it's discretion, then no error occurs.

COA held that, "While the trial court’s comments might have misled the jury about the availability of the transcript, it is the trial court’s understanding we consider here, not that of the jury. The court’s remarks to defense counsel indicate its awareness that the jury request could be granted by reading the transcript. Thus, the court was aware it had the ability to grant the jury request, but exercised its discretion in declining to do so."

Second, defendant challenges denial of motion to suppress. During a warranted search, while interviewing defendant's wife, the police found drugs. At that point, the defendant, admitted the drugs were his. He challenges, saying that the he was unlawfully in custody. The lower court ruled that he was lawfully detained ancillary to the execution of a warrant. "“An officer executing a warrant directing a search of premises not generally open to the public . . . may detain any person present for such time as is reasonably necessary to execute the warrant...Further, officers may use handcuffs to detain the occupants of a residence being searched and may question them, so long as the questioning does not extend the length of detention beyond that required to complete the search." Here, although defendant was cuffed, read his rights, and taken to another room for questioning, this does not make it an unlawful arrest, but rather a legal detention during execution of a search.

State v. Hester. Bladen County. Appeal of AWDWIKISI, first degree murder, and common law robbery.

First, no error in denial mistrial during capital sentencing hearing, when it was learned that a juror overheard the defendant's family disparaging the guilty verdict and discussed it with other jurors. Another juror talked with a spectator about the case and was removed. First, no evidence shows the misconduct affected guilt. It was only during sentencing deliberations. No prejudice as to sentencing, as jury returned a verdict of life without parole (only options were LWOP and death).

Second, no error in using short form indictment (as the courts have repeatedly ruled).

State v. Jackson. Stanly County. Appeal of several counts of sex offense.

The child testified by closed circuit television, as allowed under N.C.G.S. 15A-1225.1. Defendant argued that they didn't meet the statutory test and that it violated Crawford.

To allow closed-circuit child testimony, the court must find (1) "the child witness would suffer serious emotional distress, not by the open forum in general, but by testifying in the defendant's presence."; (2) “the child‖s ability to communicate with the trier of fact would be impaired.” At the evidentiary hearing, a psychologist testified that this test was met. Further, no confrontation violation, as the right to be in the physical presence of the witness must give way to protect child sex offense victims. Defendant had the ability to cross and confront the witness via video.

State v. Jones. Martin County. Appeal of AOF, misdemeanor breaking and entering, and assault on a child.

Basically, a guy broke into a house and made some odd statements to some children and assaulted one, while trying to make her touch his chest. At school, the children looked at the on-line sex offender registry with the principal at a few pictures then identified defendant as the perpetrator.

Defendant challenges the photo array and in-court ID (as plain error) on the theory that the initial array was unduly suggestive. "Identification evidence violates a defendant’s due process right where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification."

In making such a determination, the courts look at five factors to determine "likelihood of irreparable misidentification":

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.”

And two more on whether the pretrial ID was suggestive:

(1) “Whether the accused is somehow distinguished from others . . . in a set of photographs”; and
(2) “Whether the witness is given some extraneous information by the police which leads her to identify the accused as the perpetrator of the offense.”

Held: First, principal was not acting as an agent of the state, because he was not acting under his public authority--principals do not engage in the competitive enterprise of ferreting out crime. "Rather, Principal Hart’s actions were more akin to that of a parent, friend, or other concerned citizen offering to help..." Even if the ID was impermissively suggestive, that doesn't rise to a 14th violation here because there is no state action. Second, even if it did, this procedure was not unnecessarily suggestive.

Steelman concurs separately. Believes that they shouldn't have even heard the constitutional issue, despite the fact that it involves the admissibility of evidence.

State v. Jordan.  Caldwell County. Appeal of 1st degree murder conviction.

Major issue is the defense motion to suppress defendant's confession. 

Defendant told police: "I need my rights. I ain’t signing my away right,"... "I know but that ain’t right. Ya’ll ain’t even wanting to question me man without a lawyer present. My people’s already getting me a lawyer cuz." He later signed a waiver and confessed.

Held: These statements were too ambiguous to constitute an assertion of the right to counsel.

Second, the video tape of the interrogation was of poor quality. The jury was given a "transcript" and instructed that it was only for corroboration and their memory of the tape should serve as reference for evaluating the transcript. This might have been error, since the tape was of poor quality, but in any event it was harmless, as other witnesses said that defendant said he was going to kill the victim, that he said he did kill the victim, and eye-witnesses said they saw him kill the victim.

State v. McDonald. Cabarrus County. Appeal of cocaine possession conviction.

Defendant challenges admission of lab report on grounds that the testing was not conducted by an accredited lab and the procedures were not sufficiently reliable. This was not plain error. Expert had an adequate background. The lack of testimony on accreditation or approval by the SBI of procedures used, alone, did not make 702(a) unreliable.

Note: Under the new Rule 702(a), expert opinions can come in if the expert is qualified and the testimony is supported by reliable principles and methods, reliably applied to the facts--effective 10/1/2011 and not relevant to this case.

State v. Sims. Buncombe County. Appeal of indecent liberties conviction.

At a target, defendant went up to a girl three times: (1) he crouched down and looked at her legs, (2) fell into her and wrapped his hands around her belt area, then apologized, and (3) knelt down 6-8 inches from her legs. Other testimony came in of other people at target whose legs defendant had commented about or asked to touch. Defendant admitted that he had an obsession with women's legs.

Held: Sufficient evidence for an indecent liberties conviction, including element that touching was for sexual gratification/desire.

State v. Teague. Randolph County. Appeal of two counts of attempted 1st degree murder, larceny of a motor vehicle and RWDW.

 First, sufficient evidence for attempted murder. Requires proof of "(1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing.”

Defendant bought some binoculars, went to victim's house, laid in wait watching them,  when they went to bed he broke into their house, and then cut them both in the neck multiple times while they slept. This is sufficient evidence of premeditation/deliberation and specific intent to kill.

Second, no error in state's closing arguments. State's argument was that "There are three kinds of people in the world: there are sheep, there are sheepdogs, and there are predators...Predators are the ones who come in the middle of the night and they slit your throats and they try to kill you because they want what they want, and they want what you have, and they’re upset because life hasn’t treated them fairly. But that’s no excuse for them to be a predator. Sheepdogs. Those are the people that protect the sheep. Those are the people who are willing to stand up and do what’s right. They serve in law enforcement, they are firefighters, they are the people who protect our communities and our citizens from people like Charles Teague. Ladies and gentlemen, each and every one of you, for the purposes of being here today, is now a sheepdog."

Defendant argues this is an improper argument for calling on jury to "protect the community" and name-calling. Not plain error.

"We ... reiterate that comparisons between criminal defendants and animals are strongly disfavored but, as the State has a wide latitude in jury argument, hold that the State’s closing argument did not rise to the level of being so grossly improper as to require the trial court to intervene ex mero motu.”

Friday, October 21, 2011

Mill Pleads Guilty in Alamance, State Still Seeks Death

Yesterday, Dennis Mills, against advice of counsel, pleaded guilty to a double murder in Alamance County. They are in the process of picking a capital jury.

His lawyers had planned to offer the defense of insanity. His plea makes him subject to, at the minimum, a life in prison sentence.

A jury will still have to be picked and a trial held on whether he should live or die.

After 8 days of jury selection, only 2 jurors have been selected. The selection and trial could last for weeks or even months. The state could end this expensive process at any moment by declaring the case non-capital and asking the judge to sentence Mills to life without parole.

Press here.

Tuesday, October 18, 2011

Capital Trials Continue

Three on-going capital cases are in jury selection around the state.

Dennis Mills, in Alamance County, is charged shooting two men. He is putting on diminished capacity and insanity defenses. It is in the second week of jury selection. Press here.  At the end of the first week, only one juror had been selected.

Larry Robinson, in Robeson County. I cannot find any press or information about this case.

Danny Hembree, Gaston County. Hembree is charged with killing two women. As of last Wednesday, 11 jurors had been seated. Press here.

Also:

In Stanly County, the capital murder trial of William Robinson has been set to begin on October 26, 2011. He is charged with shooting a store employee. Press here.


Friday, October 14, 2011

NC Supreme Court Criminal Decisions, 10/7/2011

Conner v. Council of State. See full post, here.

State v. Edwards. Guilford County.  Digged

State v. Hill. Buncombe County. Appeal of robbery with a dangerous weapon conviction. Aff'd.

Sufficient evidence of RWDW where witness to the robbery did not make a clear statement that the defendant had a weapon, where other evidence came in, without objection, of hearsay statements that defendant had a knife during the robbery. "Moreover, even assuming, arguendo, that Detective Taylor’s testimony that Mr. Cole was robbed by a man with a knife was incompetent, “all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on” a motion to dismiss"

State v. Marler. Haywood County. Digged.  

State v. Moore. Buncombe County. Appeal of restitution award. Rev'd.

Reversing court of appeals and finding insufficient evidence for a restitution award. The only evidence of the value of the damage was a statement of a witness at trial that "she had obtained an estimate for repairs to the house, which totaled “[t]hirtysomething thousand dollars.” This was not sufficiently definite evidence for a restitution award (which was submitted as an unitemized worksheet listing $39,332.49 as the damages).

The general rule for restitution is this: "In applying this standard our appellate courts have consistently engaged in fact-specific inquiries rather than applying a bright-line rule. Prior case law reveals two general approaches: (1) when there is no evidence, documentary or testimonial, to support the award, the award will be vacated, and (2) when there is specific testimony or documentation to support the award, the award will not be disturbed."

The court of appeals vacated. Because their was some evidence, it should have been remanded for less vague evidence.

State v. Nickerson.  Orange County. Reversing lower court decision (post on lower decision here).

Issue is whether unauthorized use of a motor vehicle is a lesser-included offense of possession of stolen goods. An offense is a lesser included if the lesser has no additional elements than the greater.

S.C. ruled that the COA wrongfully ruled that if the general elements of the greater crime could cover the more specific elements of the specific crime, then they are the same element.

Unauthorized Use has an essential element that the taking occur of an motor vehicle. Possession of stolen goods has just a general element of a stolen object. As such, the court held that the unauthorized use had an additional element and is thus not a lesser-included.

Robert Lee Pasteur
State v. Pasteur. Franklin County. Appeal of COA reversal in 1st degree murder conviction (post on lower decision here.) Conviction was vacated below on insufficient evidence, on the basis that one drop of blood on a shoe and being seen on a highway in the vicinity around the time of the victim (his wife)'s disappearance, without more, was insufficient to show guilt.

Supreme Court upheld the decision, in a per curiam decision, with a vote of 3-3. "Accordingly, the decision of the Court of Appeals is left undisturbed and stands without precedential value."

Here's some old press on this case. This man was standing on the finest line between absolute freedom and life without the possibility of parole. Yowzah!