Sunday, February 27, 2011

First Up Next Week: Cook Trial Verdict?

Jurors began deliberating last Friday in the Cook 2nd degree murder case (discussed earlier). This is a drunk driving vehicular homicide case out of Wake County. Jurors must determine if Mr. Cook's actions were sufficient to rise to malice--reckless disregard--the level of intent necessary to prove 2nd degree murder.

Cook's attorneys argued that he was only guilty of involuntary manslaught--i.e. the criminally negligent killing of another.

Deliberations to resume Monday.

Friday, February 25, 2011

Evidence to start in Tony Summers case

According to press, as of 3 days ago, they were 2 jurors away from beginning trial in Tony Summers case.

Summers is being capitally tried for 1st degree murder in Greensboro.

Also, in Lee County, the capital murder trial of Ebony Watson began this week. Watson is charged in the beating death of a minor child.

Friday, February 18, 2011

Isaac Stroud sentenced to life

Well, I guess you can ignore the last post. According to a "Breaking News" icon on WRAL, Judge Hudson commuted Stroud's sentence to life due to a mental disorder.

I'm sure details will follow soon. If this is accurate, the Racial Justice Act issues in Mr. Stroud's case will be mooted. Stroud was the only person from Durham County on Death Row.

Durham Judge to Tackle Racial Justice Act

Next Month, Orlando Hudson will be the 2nd judge in the state to hear Racial Justice Act claims.

The claims of Isaac Stroud, a black man from Durham convicted in the 1993 killing of his girlfriend, have been scheduled for an initial hearing next month. His attorneys have statistical evidence showing black defendants are more likely to get death in Durham county than white defendants.

His lawyers have also filed motions challenging Stroud's competency.

Judge Hudson will begin wading into these issues next month.

Wednesday, February 16, 2011

Second Degree Murder Trial Continues in Wake County

The Second Degree murder trial of Raymond Cook (left) continues in Wake County. Cook is accused of drunkenly crashing his car and killing a young woman. Cook had a history of DWIs and was speeding that night.

The case has received quite a bit of press, likely because the defendant is both white and affluent and the victim, Elena Shapiro (below) was a professional ballerina with the Carolina Ballet.

The trial seems to hinge on whether Cook's actions show reckless indifference to human life (prosecution: he was wildly speeding, drunk as a skunk and had a callous history of drunk driving) or simply a tragic accident (defense: he had a few drinks at the bar and rushing home to meet wife, but the accident could have happened to anyone).

Will be interesting to see how this one pans out. The trial could go on a for another week or two.

NC Court of Appeals Criminal Decisions (February 15, 2011)

Reversals
State v. Whitted. Cumberland County. Appeal of conviction for breaking and entering a motor vehicle, larceny, credit card theft, credit card fraud, common law robbery, OPFP, uttering a forged instrument, and habitual felon. Defendant was sentenced to 133M + 132M.

The facts of the case involved (1) a "car crash" scam. The defendant followed the victim home and alleged that the victim had bumped her car. While they were arguing, an accomplice stole the victim's purse. Later, the defendant used the victims credit cards at different stores; and (2) stealing someone's purse out of their shopping cart at Wal-Mart.

First, defendant challenges the courts failure to hold, sua sponte, a competency hearing. A court must inquire into competency, on its own motion, where reason to question competency appears from the defendant's demeanor, irrational behavior, or due to prior medical opinions. Defendant had a history of paranoid schizophrenia, which was noted by the magistrate, and there were multiple irrational outbursts during trial. (e.g. "On the third day of her trial, Defendant
refused to return to the courtroom because she felt her rights were being violated, and stated she felt she could rely on her faith. When Defendant was brought forcibly into court, handcuffed to a rolling chair after having been tasered, she chanted loudly and sang prayers and religious imprecations, refusing to be silent or cooperate with trial proceedings.")

This created a bona fide doubt as to her competency, and the trial court erred in failing, sua sponte, a competency hearing. Remanded for retrospective competency determination (if trial court determines that was not possible, then new trial will be necessary).

Second, no plain error in allowing a Detective to "identify" the defendant from a surveillance video.

Third, hearsay statements of defendant's co-defendant were not objected to at trial and not preserved by a plain error assignment and are thus dismissed.

Fourth, no error in allowing defendant to orally waive her right to be present (the habitual felon portion of the trial was conducted outside the defendant's presence).

Under 15A-1011(d), a defendant may waive appearance if: "(d) A defendant may execute a written waiver of appearance and plead not guilty and designate legal counsel to appear in his behalf in the following circumstances: (1) The defendant agrees in writing to waive the right to testify in person and waives the right to face his accusers in person and agrees to be bound by the decision of the court as in any other case of adjudication of guilty and entry of judgment, subject to the right of appeal as in any other case; and (2) The defendant submits in writing circumstances to justify the request and submits in writing a request to proceed under this section; and (3) The judge allows the absence of the defendant because of distance, infirmity or other good cause."

The court ruled that this statute only relates to waiving presence for the entry of pleas, not to other parts of the trial. Her oral waiver was adequate to waive her constitutional right to be present and face her accusers.

Other Cases

State v. Bonilla. Harnett County. Appeal first degree murder conviction, 2 counts of sex offense, and 2 counts of first degree kidnapping.

Basically, facts as found were that the defendant got in an argument with his roommates. He hog-tied and beat up one in another bedroom. Then the defendant gagged the other victim and forced a wine bottle into his rectum then raped him (this roommate survived). While this was going on, the victim in the bedroom suffocated and died.

First, sufficient evidence existed for the first degree kidnapping. A 1st degree kidnapping occurs where there is:
  • Unlawful confinement, restraint, or removal of a person from one place for the purpose of, among other things, doing serious bodily harm or terrorizing the person--i.e. placing them in a high degree of fear.
Sufficient evidence of "intent to terrorize" the surviving victim where, after binding hands and feet, the beatings, sexual assaults, and death threats occurred. Also, there was sufficient evidence of intent to do serious bodily harm as sex assault is serious bodily harm. Sufficient evidence of "intent to terrorize" the decedent, where he was moved to another room, bound with cord and beaten.

Second, no error in allowing 1st degree murder to proceed on the theory of premeditation and deliberation. Here, the decedent was hog-tied and left gagged in the other room after being beaten and kicked. The acts of beating and tying were sufficient to establish premeditation and deliberation.

Third, no error on instructing jury on "consciousness of guilt" due to flight. Generally, instructions on flight can be used to show defendant avoided apprehension if evidence supports that defendant eluded apprehension. Here, defendant left the scene through a window. This was sufficient to support a flight instruction.

Fourth, court properly submitted to the jury, as an issue of fact, whether the wine bottle constituted the use of a "deadly weapon" during a sexual assault.

State v. Garnett. Buncombe County. Appeal of drug convictions.

First, defendant challenges state's expert testimony as to the identity and weight of the "green leafy plantlike substance." This is a Melendez-Diaz challenge, essentially arguing that the testifying expert was simply relying on a non-testifying experts report, thus violating the confrontation clause.

Generally, an expert who's opinion is based “solely” upon the laboratory report produced by a non-testifying analyst violates the confrontation clause (Galindo). However, if the testimony is not just the results, but includes a "technical review" of the tests, that new expert opinion is not a violation (Mobley).

Here, the state's witness said they reviewed the notes, lab reports, quality control guidelines, etc. of the other analysts report and have reviewed it to "ensure it meets quality assurance guideline." This violated the confrontation clause, at it was not a "independent expert opinion." The court goes on to find this constitutional violation harmless error.

Second, no error in judge instructing that, for conviction of maintaining a dwelling, that the jury had to find that the defendant "maintained a dwelling house used for the purpose of unlawfully keeping or selling marijuana." (The crime requires maintaining for the purpose of keeping and selling). The court found this to be a mere extraneous matter and that the jury was unlikely to have convicted the defendant on theories (i.e. just keeping) not included on the indictment (i.e. selling).

Third, court did not err by refusing to find mitigating factors for sentencing, despite uncontroverted evidence. This is not a problem, since the defendant was sentenced in the presumptive range and the court only has to make finding about mitigating/aggravating factors if it departs from the presumptive range.

State v. Gomez. Durham County. Appeal of cocaine trafficking case.

During trial, the state entered recordings of phone calls between the defendant and others into evidence. The recordings were in Spanish and one of the jurors was fluent in Spanish. The defense objected, arguing that it put the jurors on uneven ground and was unduly prejudicial under Rule 403. Held: no prejudice.

State v. Moore. Buncombe County. Appeal of conviction for obtaining property by false pretense (OPFP).

The defendant was charged for purporting to rent a house to a tenant, when he did not actually own the property.

First, these facts were sufficient to fulfill the elements of OPFP: “(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.”

Second, defendant challenges restitution. (1) No requirement that the victim who receives restitution be listed as a "victim" on the indictment. (2) Here, the trial court erred in awarded restitution, in the absence of any evidence of damage amount. As a matter of law, the "restitution worksheet" alone is insufficient to support an award of restitution.

Peterson Case Back in the News

Attorneys for Michael Peterson (right) have filed a motion for appropriate relief in Durham County Superior Court, seeking a new trial in light of the SBI lab scandal.

Peterson was convicted in 2003 for the murder of his wife.

A major figure in the case was Duane Deaver, disgraced former SBI lab agent who was recently fired for hiding evidence and overstating conclusions. Deaver testified against Peterson, analyzing blood splatter found near the scene.

(From the N&O Article): During closing arguments, prosecutors urged jurors to believe Deaver, vouching for his honesty.

Former assistant district attorney Freda Black argued to jurors that to believe the defense experts who countered Deaver's testimony that jurors were "just going to have to believe that Duane Deaver is just a liar. And he had no reason in the world to come up here and lie to you."

It appears that closing argument may have just backfired.

Read more

Tuesday, February 15, 2011

House passes Forensic Sciences Bill

Today, the State House passed HB 27 unanimously, which creates an independent Forensic Science Advisory Board to oversee the SBI Lab. The bipartisan bill (which was sponsored by Dem. Rick Glazier and Rep. Skip Stam) sailed through the house in less than 15 days.

The bill came in response to problems identified within the SBI lab, including misreporting of findings and hiding exculpatory evidence. A legislative panel, which included input from judges, lawyers, and police, recommended the measure to provide greater accountability within the SBI and make it less of an enforcement arm of the state.

A big part of the identified problem was that lab analysts were seeking convictions, rather than scientific and neutral determinations.

The bill (here) will now head to the Senate, where passage is likely.

Monday, February 14, 2011

Hung Jury in Durham County Murder Case

Last week, a mistrial was declared in the case of Tori Neal in Durham County after jurors were unable to reach a verdict. Neal is charged with the stabbing murder of the 89-year-old Baptist deacon Charlie Forest Davis.

Tori's attorney, assistant public defender Rebecca Wiggins, raised questions about the lack of physical evidence connecting Neal to the murder.

The State had offered the theory that the murder was gang related. It is unclear when/if the case will be retried. Neal remains out on bond.

Read press here and here.

Thursday, February 10, 2011

Racial Justice Act survives first test

Judge Wood today, in the Forsyth County cases of Moses and Moseley, ruled that the state had not met its burden in proving that the Racial Justice Act was unconstitutionally vague.

The state's arguments--that the law was so vague that it violated due process, was rejected by the court. These arguments were extremely weak and it is odd the court held multiple days worth of hearing on the issue.

The state's claim arises out of a (mis)understanding that the due process clause of the 14th amendment (which reads "nor shall any State deprive any person of life, liberty, or property, without due process of law") somehow protects the state from deprivation in the form of not being allowing to execute individuals without due process of law (in the form of notice for non-vague statutes).

Nontheless, the court ignored this issue and heard the central claim on vagueness and rejected it, as the Racial Justice Act is no more vague than most criminal/capital statutes.

The court must now determine the procedure for managing the claims and ensure that the litigation is handled in an orderly manner and deal with the heart of the issue: studies that show widespread bias in capital punishment and state discrimination in jury selection.

Wednesday, February 9, 2011

Black Widow

I love when the media calls a murder suspect "the black widow." Whenever a man kills his wife, it's par for the course, but when a woman is accused of killing her husband, she's "The Black Widow."

Scared yet? Here's our most recent black widow: Betty Neumar, awaiting trial for solicitation of murder in Stanly County. Read press here.

The higher profile "black widow" is Blanche Taylor Moore, currently on NC's death row. Her story was made into the 90s TV movie "The Black Widow Murders: The Blanche Taylor Moore Story." I'm sure the acting was tremendous.

Tuesday, February 8, 2011

NC Supreme Court Criminal Decisions (2.4.2011)

State v. Freeman. The Supreme Court digged an appeal of a 1st degree murder reversal (COA ordered new trial on defendant's absolute right to make decisions on peremptory challenges). See post on decision below, here.

State v. Long. Per curiam affirmance of denial of MAR, 3-3 (Justice Jackson took no part in consideration of the outcome. Jackson was elected this past November, after argument/etc.). Attorney for Mr. Ronnie Long asserted in the MAR that Mr. Long was innocent of rape and they could prove it. See press, here.

State v. Pinkerton. Per curiam reversal of COA for the reasons stated in the dissenting opinion.

The Court of Appeals ruled that the trial court erred during sentencing in a child rape case, by improperly punishing defendant for exercising his right to trial.

During sentencing, the defendant said, "Yes, sir. I would. I’d like to apologize. I loved you all. I really did. That’s all I have to say."

Then the sentencing judge said, "Now, Mr. Pinkerton, prior to calling the jury in, you had an
opportunity to plead guilty in a plea bargain where the Court offered you the minimum sentence for one crime which would have been about 22 years, and you explained to me that you thought
22 years or 200 years was the same, that it was a life sentence for you. But, if you truly cared - if you had one ounce of care in your heart about that child - you wouldn’t have put that child through this. You would have pled guilty, and you didn’t. That’s your choice."

Then went on to say, "I’m not punishing you for not pleading guilty. I am not going to punish you for not pleading guilty. I would have rewarded you for pleading guilty. Your sentence is not in any way because you didn’t plead guilty. I’m sentencing you to what I think is appropriate."

The Court of Appeals ruled that this was improper punishment during sentencing for the exercise of the defendant's right to trial.

Judge Hunter's dissent, which is now adopted by the Supreme Court, reads:

"I see nothing improper about the trial judge’s acknowledgment that he would have “rewarded” defendant for pleading guilty. Clearly, every plea bargain serves to reward the defendant for admitting his or her guilt and saving the State the time and expense of trial. The reward is, in actuality, offered by the State, not the trial court. In approving the bargain reached between the State and the defendant, the trial court is then, in effect, rewarding the defendant with a sentence that is presumably less than it would have been had the defendant been convicted by a jury. Once the State has proceeded to try the defendant and he is convicted of the crimes charged, the State no longer seeks to reward the defendant. At that point, the trial court has heard all of the evidence presented, which resulted in a conviction by the jury, and is responsible for sentencing defendant for the crimes he committed; in this case, ten counts of sexual crimes against a child. At this stage in the trial process, it would be illogical to expect the trial judge to reward defendant and I see no impropriety in the trial judge making the truthful assertion that defendant would have been rewarded had he agreed to the State’s bargain."

Racial Justice Act Threatens Western Jurisprudence?


Assistant District Attorney David Hall, of Forsyth County, asserted yesterday in the first Racial Justice Act hearing that the law "threatens Western Jurisprudence." Judge Wood reassured him that, it will probably survive.

The hyperbole that surrounded attacks on the Racial Justice Act (RJA) in the press and public are apparently set to continue in court, showing how threatening a serious inquiry into the racial content of State decision-making is perceived to be.

Yesterday, in Forsyth County, the first substantive hearing on RJA was held before the Honorable Judge William Wood in the cases of Errol Moses and Stephen Moseley. The hearing involved the District Attorneys argument that the law was unconstitutionally vague because it allows use of statewide statistics to provide relief in individual cases.

A statewide study has been completed under the Racial Justice Act, showing that persons who kill white victims are substantially more likely to receive a death sentence than those who kill blacks--something advocates say uncovers a system that values white life more than black life. The study also shows that prosecutors were much more likely to strike black jurors than white jurors during jury selection. Under the law, such showing entitles a defendant to be removed from death row and re-sentenced to life without the possibility of parole.

Read press here and here.

Thursday, February 3, 2011

NC Court of Appeals Criminal Decisions, February 1, 2011

Not much interesting in here...

State v. Clyde Milton Boyd. Mecklenburg County. Appeal from robbery with a dangerous weapon and conspiracy convictions (84 - 110 M)

Victim was robbed by two men, with a gun. State's evidence was: (1) Victim identified defendant during a lineup, saying he was 95% sure.; and (2) a DVD of defendant's statements to police, played in rebuttal after defendant testified.

First, no objection to the video's admission, so claims relating to it (statement of detective not available, questioning about prior arrests, detective's opinions, etc.) are not preserved and do not constitute plain error.

Second, sufficient evidence for robbery conviction presented here (i.e. eye-witness identification).

State v. Miller. Rowan County. Appeal of misdemeanor attempted sexual battery satellite based monitoring (SBM) order.

First, district court lacked subject matter jurisdiction to order defendant to enroll in lifetime SBM.

Second, because the issue came to superior court on appeal, and this appeal was of a district court civil enrollment order--which must be heard in the court of appeals, the superior court lacked jurisdiction to hear the SBM order. Where the case reaches the superior court through improper channels, it must be vacated.

Third, SBM does not violate ex post facto laws because it is a civil regulatory scheme.

Fourth, the court notes that ineffective assistance of counsel claims are not available in SBM cases, because they are civil appeals.

State v. Williams. Guilford County. Appeal of 1st degree murder, robbery with a firearm, and conspiracy.

First, defendant moves to suppress his statement. Defendant, who was 17, asked for his mother during his Miranda warning. The officer's asked him how to contact his mother, then the defendant asked the officers when they were going to talk to him about the murder. The officers told him that they couldn't talk to him about it until his mother arrived. Defendant then said he didn't want to talk about the murder in front of his mother, signed a juvenile waiver, and confessed.

Once a juvenile asks to speak to his guardian, this is an assertion of the right to silence and he cannot be further questioned, unless the defendant initiates further communication. Here, defendant initiated further communication. As such, no error.

State v. Ziglar. Rockingham County. Appeal of felony death by vehicle conviction.

Felony death by vehicle is a class E felony. A person is guilty if they kill another person unintentionally, while drunk driving.

Defendant was drunk (.267 BAC) and speeding, crashed, and killed a passenger in his car.

At sentencing, the state requested sentencing in the aggravated range, citing two aggravating factors: "knowing creation of risk of death by means of a device normally hazardous to the lives of more than one person" and "using a deadly weapon."

Jury found aggravating factor of "knowing creation of risk of death..." and mitigating factor that the victim was more than 16 years old and a voluntary participant in defendant's conduct.

The Judge ruled that the factors "essentially cancel each other out" and sentenced the defendant in the presumptive range to 34 to 50 months.

1) State objected to defense question to defendant that "If brakes had been working, would you have been able to stop?" The court sustained the objection as speculative. The court upheld this decision, finding that the defense did not lay a proper foundation for the question (that defendant had ever perceived the ability to stop his car under similar circumstances).

2) No right to appeal sentencing issue without writ where sentence is in presumptive range.

Tuesday, February 1, 2011

NC runs out of Death Penalty Drug

As has been widely reporter, Hospira, a pharmaceutical company, is no longer making sodium thiopental, a key ingredient in the death penalty cocktail used by most states, including North Carolina.

The company had been producing this in its North Carolina plant, but moved its operations to a plant in Italy. Faced with repercussions by the Italian government if it produced products that were used in capital punishment, the company ceased providing sodium thiopental to American death penalty states.

This could create serious problems for executions in North Carolina, as the administrative and legislative processes needed to change the method of execution could be quite difficult and lead to extensive litigation over the efficacy and humanity of any alternative choice.

Court and legislatures across the country will soon begin dealing with this problem as more and more states run out of the lethal drug.

Read more here.