Monday, January 31, 2011

Hung Jury in Wake County Murder Case

In the first degree murder case of William Otis Bryant, in Raleigh, the jury could not reach a verdict and a mistrial was declared today. Mr. Bryant was charged in the shooting death of a cab driver. If convicted, he could receive a life sentence without possibility of parole. Read more here.

Mr. Bryant gained some notoriety a few months back when DOC accidentally released him. (See here). Mr. Bryant's bond was reduced to $200,000 and he awaits a new trial.

1st Capital Trial of the Year

Attorneys are picking jurors in the capital murder trial of Tony Summers in Greensboro. This is the first capital murder trial of the year.

Read more here.

Friday, January 28, 2011

Are 16 year olds minors?

Not in North Carolina. At 16, a child must be treated as an adult. Well, only in one area of law--criminal law. As such, may young adults are developing criminal records at a very young age and are being handled by the adult criminal justice system, rather than a system designed to fix errant youth behaviors

Recently, the bipartisan Youth Accountability Task Force completed a 2-year study of this issue and has recommended to the General Assembly that the age of majority for criminal laws be raised to 18. Under their recommendations, adult punishments would still be available in serious crimes, but for misdemeanors and non-violent low-level felonies, the juvenile justice system would be available to handle the matter and hopefully set youth on a proper path.

Such a path prevents 16 year old from getting convictions that can forever hamper their economic opportunities.

Read about it more here.

Racial Justice Act Cases Head to Court

The first cases under the Racial Justice Act (RJA) have been set for hearing and appear to be moving in an orderly manner through the judicial system.

Judge William Wood of Forsyth County Superior court scheduled two inmates cases, Carl Stephen Moseley and Errol Duke Moses, for hearing on the constitutional validity of the Act.

The State asserts that the RJA is unconstitutionally vague and has other constitutional problems. If Judge Wood agrees, he could strike down the 2 year old law.

If not, Judge Wood would then hear discovery issues and likely set up a time table for the state's experts to review the defendant's study, which demonstrates widespread discrimination in jury selection and capital charging and sentencing. After the State's experts have fully reviewed the study and conducted any appropriate further study, the case would be heard and resolved on its merits by Judge Wood. It appears that these cases may be the lead cases in the area and their orderly resolution will be instructive for other RJA claims around the state.

Sunday, January 23, 2011

GOP to Repeal Racial Justice Act

Led by Paul "Skip" Stam, NC Republican legislators have indicated their intent to repeal the Racial Justice Act (see here). The act forbids execution in cases where evidence shows racial discrimination in jury selection or in decisions by the state to seek death.

This development is surprising, given that studies released (that were conducted in response to the act), demonstrated widespread discrimination by DA's offices around the state.

It looks like the Republicans want to sweep racial discrimination in capital murder cases under the rug, despite this widespread evidence and recent exonerations of numerous innocent black defenants from death row.

Racism-1, justice-0.

Saturday, January 22, 2011

Grasping at Straws in Valerie Hamilton case

In the Charlotte case of Valerie Hamilton, the autospy has revealed that she died of an overdose.

When Hamilton, daughter of a local police chief, died, it sparked a national manhunt for a former sex offender she was seen with around the time she died. Allegation immediately assumed that she had been kidnapped, raped, etc., etc.

When Michael Harvey was arrested, he said she died of an overdose and he got scared and ran.

Despite confirmation from the autopsy, the prosecutors haven't dropped the charges, instead suggest that it still could have been murder if Harvey forced the drugs on her.

Its hard to let a bad case go, especially when it's high profile. Of course, in the end, the State will offer a sweatheart deal, to which Harvey will have no choice but to plead guilty, to save a little face...

See story here.

Wednesday, January 19, 2011

NC Court of Appeals Criminal Decisions (1/18/2011)


State v. Chlopek. Wake County. Appeal of denial of suppression motion.

Defendant was stopped by police after he was seen late at night in a work truck in the area of a place near where some prior copper thefts had occurred and police thought he "looked nervous." Held: No reasonable suspicion to make the stop. All the facts were general to the area, not particularized to the defendant (late at night, in partially developed subdivision, during time when there had been some thefts).


Other Cases

State v. Blount. Lenoir County. Appeal of judgment on guilty plea to possession of stolen goods and obstruction of justice on subject matter jurisdiction.

First, defendant argues the indictment was insufficient to elevate his misdemeanor charges to a felony. Common law obstruction of justice is normally a misdemeanor. N.C. Stat. 14-3(b) can elevate it to a felony if it is "infamous, done in secret and malice, or with deceit and intent to defraud." To so elevate, the indictment must specifically include this language. Here, the indictment said, "This act was done with deceit and intent to interfere with justice." This language was sufficient to give notice of the felony by "deceit and intent to defraud."

Second, trial court sentenced defendant in the presumptive range, rather than the mitigated range. This is not a problem as the plea transcript only stated that the state would not object to a mitigated sentence, not that one would be imposed.

Third, restitution was inappropriately awarded, as there was no stipulation or evidence offered in support of the state's proffered restitution worksheet.

State v. Jennings. Cabarrus County. Appeal of statutory rape, sex offense, and indecent liberties convictions.

Defendant, who was 28, had a relationship with his 14 year old neighbor. At first, they chatted on-line and talked regularly on the phone, for about 6 months. Then, she snuck out to be with him and they kissed. Then, she snuck out and they had sex. They continued to talk on-line and by telephone. Over the next six months, they met up on other occasions and had sex.

After the year, they broke up. The girl, now 15, was diagnosed with a sexually transmitted disease. Her mother took her to the Child Advocacy Center and examined.

After trial, defendant was convicted of multiple counts of statutory rape/sex offense and sentenced to a minimum sentence of 39+ years.

1) No error in allowing family medicine doctor to testify that her examination of the minor showed no scarring, but that any scarring from sexual intercourse would have probably been healed (thus explaining the lack of physical evidence of sex).

2) No error in admitting evidence of computer forensic examiner who tested defendant's computer and found no sexually explicit information or emails/etc. between the two, but did find that some of his hard drives had been "wiped clean." On direct he was asked if someone who has criminal activity on a computer will usually try to hide it and he said yes. Defendant challenges this under 702 as a non-expert opinion that was not helpful to the jury. Experts can only offer opinions on things within their expertise, not simply make common sense arguments to the jury.

The court made no holdings as to whether this testimony was improper, but simply ruled that the error was harmless.

State v. Williams. Martin County. Appeal of denial of motion to suppress.

First, police had reasonable suspicion to stop the vehicle (in which defendant was a passenger). Basis for stop: police mistakenly believe the driver was a different person, who had his license revoked, and had been tipped by 3 confidential informants that there were drugs in the car.

Informant's tip can provide reasonable suspicion if it has sufficient "indicia of reliability." Here, they did. Two were long-time informants who had previously supplied reliable information, the basis of knowledge for the 3rd informant was actually seeing the defendant sell drugs, and there statements were corroborated (said defendant and another man in black SUV sold drugs at the holiday in and police saw defendant and a 3rd man in a black SUV going in and out of the holiday inn and saw known drug users coming and going at the holiday inn).

Police good-faith mistake as to identity of driver does not negate validity of the stop. Under the totality of circumstances, reasonable suspicion existed.

Second, defendant argues that police exceeded scope of his consented to search by searching his mouth and choking him (because they believed he swallowed evidence). When officers observed defendant try to swallow something, it gave them probable cause to believe he was swallowing drugs and exigent circumstances (destruction of evidence) to conduct a warrantless search of his mouth. This probable cause have basis for search separate from the consent (as such, the exceeding the scope issue is not relevant).

Police good faith belief teh driver

Saturday, January 15, 2011

James Richardson Trial to Stay in Pitt County

Yesterday, Judge Duke in Pitt County ruled that the James Richardson capital murder trial will remain in Pitt County. The case involves a shooting in downtown Greenville, NC of ECU Students.

Lawyers for Mr. Richardson had argued for a change of venue, citing a survey showing 82% of persons in Pitt County were familiar with the case, the extensive press coverage, inflammatory statements made by police to the press, and the testimony of local figures that they believed Mr. Richardson could not get a fair trial in Pitt County--including ECU professors and a retired police officer on the Crime Task Force.

The case is set for trial on March 14, 2011.

Tuesday, January 11, 2011

Duane Deaver Fired

Yesterday, the SBI crime lab fired Agent Duane Deaver--the agent at the center of the most egregious instances of hiding evidence.

Deaver's handiwork previously led to the wrongful conviction of Greg Taylor for 1st degree murder. Deaver hid evidence showing that "blood" found in Mr. Taylor's car was not blood. Judge Quentin Sumner, the chair of the Innocence Commission, previously order that a show cause hearing be held, to determine if Agent Deaver should be held in contempt for giving false testimony at that proceeding. To date, no contempt hearing has been held.

This comes after nearly a year of high profile press and a federal audit showing huge problems within the SBI blood lab.

Tuesday, January 4, 2011

NC Court of Appeals Decisions, January 4, 2011

State v. Cole. Durham County. Appeal of accessory after the fact to 2d murder and robbery.

1) No jurisdictional problems with trial for accessory after the fact to 2d murder where indictment said 1d murder. This indictment provided adequate notice to prepare for the defense, as the elements of the underlying felony are not essential elements for the crime of accessory after the fact.

2) Sufficient evidence for accessory after the fact, even though assistance was rendered after the victim was shot, but before the victim died, as the reasonable inference would have been that the defendant knew precisely what had taken place.

3) No error in courts failure to instruct on the meaning of "malice" and the legal concept of "mere presence" (that mere presence is not enough to be an accessory). Mere presence only applies to accessory before the fact, not after the fact. Not plain error to fail to instruct on malice, as there was not request.

4) Not plain error to allow detective to testify that, upon observing the scene, he believed a homicide and robbery had occurred and two people were involved. This was not a legal conclusion, merely testimony about police procedure.

5) Not plain error under 404(b) for witnesses to make passing references to defendant's prior record (e.g. I know defendant since he came home from prison).

6) Not plain error when prosecutor, in closing, referred to the testimony (above in 5).

State v. Dewalt. Forsyth County. Appeal of a felony speeding to elude arrest case.

Speeding to elude arrest is a felony (class H) if two of the following aggravating factors are present:
  • Speeding more than 15 MPH over limit
  • Intoxicated or BAC of .14
  • Reckless driving
  • Negligent driving leading to an accident with $1000+ damage or injury
  • Driving while licensed revoked (DWLR)
  • Passing a stopped school bus
  • Driving with a child under 12 in the car.
First, Defendant argues that judge failed to instruct for aggravating factor of DWLR a requirement that the driving occur on a highway (an element of the separate crime of DWLR). Here, the aggravating factor is separate from the crime of DWLR and only requires proof that the driving occurred while license was revoked, not of the separate requirement that it occur on a highway as defined by the crime.

Second, no error in failure to instruct on the lesser included of misdemeanor speeding to elude arrest, as the evidence did not support such a finding (based on the DWLR and reckless driving).

Defendant was sentenced to 8+ years as a habitual felon.

State v. Kerrin. New Hanover County. Appeal of probation violation order and license revocation order. Remanded for new findings, since the court failed to make required findings of fact under 15A-1331A.

Under 15A-1331A, upon conviction of revocation of felony probation, the court may revoke state licensing privileges (including driver's licenses) for the probationary period if it makes findings that the individual didn't make "reasonable efforts" to comply with probation. Here, no such findings were made.

State v. Mackey. Mecklenburg County. Appeal of discharging weapon into occupied property and assault with a deadly weapon (AWDW).

First, defendant argues state failed to give proper written notice of its intent to seek to prove aggravating factors during sentencing. The state must provide 30 days written notice of intent to seek aggravation. During plea negotiations, the sent a letter stating that it, if the plea wasn't sought, it would have sought 2 aggravators. This was insufficient notice. It does not indicate this was a notice and there is some doubt about whether fax service was adequate. The form for providing notice, AOC-CR-614, indicates on it that service must be by personal delivery or mail. In total, the court was not satisfied that notice was effected. Trial court erred in giving an aggravated sentence.

Second, no error in denying the motion to suppress. Here, evidence was obtained during a car stop (running a red light) and search incident to arrest. Under Gant, that search may have been illegal. The trial court held, however, that the defendant was a passenger and had no standing to challenge the search. Here, defendant was a passenger who didn't own the vehicle and asserted no possessory interest in the vehicle or its contents. As such, no standing to challenge the search.

State v. Mbacke. Forsyth County. Appeal of denial of MAR.

Defendant filed an MAR based on Gant, a newer Supreme Court case that says you cannot search a car incident to arrest, if the defendant is outside of the car. A car can only be searched if probable cause exists to believe there is evidence of crime in it.

Here, defendant was arrested for DWLR and possession of a concealed weapon (on his person). All the evidence that could exist for those crimes are on his person, not in the car. As such, it was improper, under Gant to conduct the warrantless search of the car.

Dissent by Stroud.

State v. Oakes. Hertford County. Appeal of 1st degree murder conviction.

First, statements of prosecutor analogizing defendant to a tiger on a nature show. While calling defendant's animals is "strongly disfavored" the analogy was appropriate in this context, as it explained premeditation and deliberation.

Second, no error in court refusing to qualify defense expert in "use of force science" (but allowing him to testify anyway). This expert was important to p&d theory. Court found no prejudice, as the jury convicted both on p&d and on the felony murder theory.

Third, no error in the trial court's failure to recuse itself. After review of transcripts, COA didn't find the judge as overly "dismissive" or disrespectful to the defendant.

State v. Parlee. Iredell County. Second degree murder conviction.

Defendant sold 1 oxymorphone pill to one of two minors for $20. Defendant told them it was pretty strong and not to take the whole thing at once. They both took half, and the one that didn't pay died. Charged and convicted of 2nd degree murder based on sell of inherently dangerous drugs.

First, sufficient evidence presented for 2d murder. Under NC law, murder proximately caused by the "unlawful distribution" of opium-based compounds is 2nd degree murder. Malice can be inferred from the distribution of the substance, as can proximate causation (even if the substance is then transferred to a third party, as here).

Second, no error under double jeopardy of sentencing consecutively for the sale and the murder, as they are not the same offense (each contains elements not included in the other).

State v. Starr. New Hanover County. Appeal of conviction of assault of firefighter with a firearm.

Sufficient evidence presented: evidence that defendant shot at a door from inside while firefighters attempted to break it down.

No error in denying defendant's request to instruct on assault, as defendant did not proffer the request in writing.

No plain error in judge responding to a jury question from the jury room door, where he indicated his intent to do so and defendant did not object (proper procedure is to bring jury into court room to respond to questions).

State v. Walters. Robeson County. Appeal of 1st degree murder conviction.

1) During trial, a state's witness stated she couldn't remember talking to an officer, then submitted her prior statement to an officer as evidence, even though she stated she still didn't remember what she told the officer, even after reading the statement.

First, under State v. Hunt, a party may not impeach using prior inconsistent statements solely for the purpose of placing evidence before the jury that would not otherwise be admissible. They may only be admitted as corroborative evidence (or as impeachment, on cross).

Here, however, unlike Hunt, the witness was not "hostile" and didn't expressly deny the substance of the statements. Rather, she simply couldn't remember. Second, the statement was offered through an officer and used to corroborate the witnesses in court statement (she remembered what happened, just didn't remember the statement). The statement included an "extraneous," non-corroborative statement that defendant and his girlfriend had been fussing and he committed the murder to "take it out on somebody." The court found that, while non-corroborative, it was not unduly prejudicial under 403.

Finally, not a Crawford problem, as the witness was in court and available to be cross-examined.

2) No error in court's giving slight variation of the Allen Charge.