Thursday, March 31, 2011

Richardson Case Closes Tomorrow

Attorneys in the capital murder trial are set to give closing arguments tomorrow morning.

The defense rested today, after putting on two eye-witnesses to the shooting describing the shooter very differently from the defendant (and the state's prior witnesses).

Deliberation will begin afterwards and a verdict could be out by lunch tomorrow or it could go past the weekend into next week.

If convicted, the jury will then begin hearing evidence on sentencing.

Press Here. Michael Abramowitz's coverage from the Daily Reflector has been top notch.

Monday, March 28, 2011

Mistrial in Iredell County Murder Case

The capital murder trial of Al Bellamy ended in a mistrial today in Iredell County. The state waited until after it had rested in its case-in-chief before dumping a new 1,800 pages of discovery on the defense.

The judge ordered a mistrial due to these gross discovery violations and declared the case non-capital.

More to follow.

Exonerees Object to Changes in Discovery Bill

Five men, including Greg Taylor, Darryl Hunt, who collectively spent over 60 years in North Carolina prisons for crimes they didn't commit, held a press conference today to oppose HB 408. HB 408 removes the duty of the state to provide to criminal defendant the complete law enforcement file.

The bill is a step backward in a criminal discovery system that has become more expansive in the last 20 years. Also, the constitution requires disclosure of any exculpatory information. The discovery provisions in place have largely displaced the need for disputed hearings on these constitutional standards and prevented subsequent cases being overturned due to the failure of the state to comply with constitutional discovery violations.

Hiding evidence had a role in these wrongful convictions. Without complete access to the law enforcement file, evidence of innocence can be missed and result in more wrongful convictions. Denying defendant's access to the state's evidence will only result in more injustices like those of Mr. Hunt and Mr. Taylor.

Closing Arguments

As these many murder trials around the state come to a close, I thought I'd write a note on closing arguments. In North Carolina, closing arguments don't proceed in the way they do in most states.

As documented time and again in law and order, in most jurisdictions the State gives a closing argument, then the defendant gives a closing argument, then the state gets the final word in a rebuttal argument.

In North Carolina, the defendant gets the final closing argument, unless he or she "introduces evidence." However, introducing evidence is more nuanced than it sounds.

First, publishing any evidence to jury or calling any witness to the stand counts as introducting evidence. However, crossing on any new matter that was not "relevant to the testimony submitted on direct" is also included.

How can a defendant get evidence before the jury and still give the final closing. Here are some ways to walk up to the line, but not cross it.
  • Reading Transcripts/documents: On cross examination, a defendant can read transcripts or documents as part of their questions (as long as relevant to direct testimony). As long as the defense doesn't go so far as asking to publish the documents to the jury, no evidence has been introduced. State v. Bell. But, while you can read the transcript, you can't play the tape/video of the prior statement. State v. Yoes.

  • Witness Character: asking traditional questions that challenge character for the witness are "relevant" to the testimony, even if off topic (classic example: "Isn't it true you were convicting of perjury in 2005?") State v. Raper.

  • Refreshing Recollection: you can give objects/documents to the witness to refresh their recollection, as long as you don't move its admission into evidence. State v. Hall.

Friday, March 25, 2011

Cooper Trial Continues

In Raleigh, the non-capital murder trial of Brad Cooper continues.

From the press reporting, it seems that there has been almost no evidence offerred by the state, other than gossip and innuendo, even though they've been in evidence for a couple of weeks now. The State has presented the trial like an episode of Desperate Housewives, with a never-ending stream of middle-class white people dishing the dirt.

See latest story, here.

WRAL has been covering the trial extensively and even has had a live web-cam of the trial at times on its website.

Thursday, March 24, 2011

Protestors...


Appearently some people... or at least this one guy is protesting at the trial of James Richardson in Pitt County.


UPDATE: OK, apparently, this isn't just one guy. I missed the larger story. Apparently, there was a big march, led in part at least by Mr. Richardson's mother, protesting the trial.

NC Court of Appeals Criminal Decisions, March 15, 2011

New Trial

State v. Towe. Appeal of three counts 1st degree sex offense and 2 counts statutory rape (and 50 year sentence).

The State's expert improperly testified that child had been the victim of sexual abuse. Under NC law, an expert may not testify that sex abuse has occurred unless there is physical evidence supporting the opinion. Here, the expert testified that:

"Q: And do you have an opinion, ma’am, based upon your knowledge, experience and training, and the articles that you have read in your professional capacity as to the percentage of children who report sexual abuse who exhibit no physical findings of abuse?

A: I would say approximately 70 to 75 percent of the children who have been sexually abused have no abnormal findings, meaning that the exams are either completely normal or very non-specific findings, such as redness.

Q: And that’s the category that you would place [Shirley] in; is that correct?

A: Yes, correct."

This was imperissible and constituted plain error.

Other Cases.

State v. Boozer and Covington. Appeal of conviction for assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), robbery with a dangerous weapon (RWDW) and 1st degree kidnapping. Sentenced to 93-121 M.

The facts of the case are essentially this: defendants severely beat victim (broken collarbone and nose, concussion, and jaw wired shut) with objects, including his own bicycle, and then stole his wallet. Afterwards, they tried to stuff him into a garbage can, failed, so dragged him to a nearby ditch and threw him in. When police arrived, they found the victim lying in the 10-12 ft deep ditch in several inches of water.

A witness saw the incident and identified one of the defendants (Covington) by looking through the magazine, the "Slammer" with a police officer. Later, on his own, the witness found the other defendant, Boozer, in the slammer and notified the police. Another man (who I assume took a plea) was identified by the Witness in a photo line-up. That person also left fingerprints on the bicycle. No physical evidence linked these defendants to the crime. Boozer gave a statement to police that, "I only hit the man twice."

1) Sufficient evidence of 1st degree kidnapping. Kidnapping is defined as the unlawful confinement, restraint, or removal of a person from one place to another, without consent where the purpose of the confinement, restraint or removal is (among other things) to do serious bodily harm or to terrorize the person.

Here, the "removal" was throwing the victim in the ditch. The essential issue is whether that removal was "for the purpose of doing serious bodily harm or terrorizing the victim." Here, there was sufficient evidence of intent to terrorize/do bodily harm because it was dark and defendants could not have known the depth of the ditch or if there were rocks at the bottom. Throwing him in under these conditions show an intent to terrorize/do bodily harm.

2) No plain error in failing to instruct on the lesser included crime of false imprisonment (which doesn't include the intent requirements noted above). The trial court does not have to instruct on false imprisonment if there is sufficient evidence that the defendant acted with the purpose required for kidnapping.

3) No error in procedure used to identify Defendant from the "Slammer." Pre-trial identification must be suppressed if the procedures used were "so suggestive as to create a substanial likelihood of irreprable misidentification." The likelihood of "irreprable misidentification" depends on the totality of the circumstances, including: (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.

Here, there was no likelihood of irreprable misidentification, as the witness had opportunity to view the defendant and was familiar with him from multiple poker games at his house, lasting 2-3 hours each. Further, he identified the photograph and his prior description of him was accurate.

No error.

State v. Hughes. Appeal of sentence for felony breaking and entering, larceny, and possession of stolen goods, sentenced to 96-125M as habitual felon.

Found lack of jurisdiction to hear appeal, as the defendant failed to note appeal in compliance with Rule 4. To appeal, a defendant must give oral notice of appeal at trial or file notice of appeal with the clerk of superior court, serving copies on all adverse parties, within 14 days of judgment.

No oral notice here and no written notice was ever filed. There was a box checked by a judge on form CR-350 indicated Notice of Appeal. However, this "boilerplate" form does not preserve appeal, in the absence of a statement in the trial transcript or a written notice of appeal.

State v. Santos. Court erred in determining defendant was eligible for lifeltime satellite-based monitoring (SBM).

1st) Found that defendant's guilty plea was knowing and voluntary. Held that defendant's plea was not involuntary, even though court only gave him 15 minutes to make a decision on whether to accept the plea and would given him more time to "reflect on this important decision."

2nd) Trial court erred in finding that 1st degree sexual offense was an aggravated offense for SBM purposes. To determine if a count is "aggravated," the court must look only to the elements of the offense, not the underlying facts. An "aggravated" offense is one involving penetration by force or with a minor under 12. The elements of sex offense require that the minor be under 13, not under 12. As such, by definition, it is not an aggravated offense (even if the child in the case was under 12).

State v. Shropshire. Defendant pleaded guilty to attempted rape and attempted statutory rape in exchange for a mitigated sentence. The court sentenced him in the mitigated range, but ran the 2 charges consecutively, for a sentence of 151M + 151M. Shropshire apparently didn't think he could be sentenced consecutively.

Afterwards, this exchange occurred:

  • SHROPSHIRE: I didn’t understand, your Honor.
  • THE COURT: 151 minimum to 191 minimum [sic] plus the same thing.
  • SHROPSHIRE: Your Honor --
  • THE COURT: Take him out.
  • SHROPSHIRE: I appeal this on the grounds my constitutional rights were violated. I appeal.
  • THE COURT: [Defense counsel], if you’ll take a couple minutes to explain with [Shropshire] the limited grounds for appeal. If he alleges grounds that are allowed to be appealed to the guilty plea I will allow him to plea [sic].
  • SHOPRSHIRE: I would also like to reject my plea.
  • THE COURT: That’s a motion to withdraw your plea, is that what that is?
  • SHROPSHIRE: Yes, sir.
  • THE COURT: Motion denied. Take him out.
Defendant argues on appeal that trial court erred in summarily denying his motion to withdraw his plea. A motion to withdraw a plea is a motion for appropriate relief (MAR). A party is entitled to a hearing on any MAR, unless the court determines the motion is without merit. There was no evidence here that the plea was not the product of free and intelligent choice. The only reason for moving to withdraw was dissatisfaction with the sentence. As such, the court was free to summarily deny the motion.

State v. Smith. Appeal of AWDWISI.

First, court erred in ordering restitution, as the State failed to present evidence to support the amount of restitution ordered.

Second, court did not err in instructing the jury that, as a matter of law, multiple gunshot wounds to the upper body constituted "serious injury".

Third, no error in refusing to instruct on the lesser included AWDW, as no evidence to support AWDW not inflicting serious injury.

DA's Conference Answer to Scandal?

In response to the scandal, showing the state hid or mischaracterized blood evidence in hundreds of cases is simple, according to a statement released by Peg Dorer (left).

1) "The District Attorneys have found no cases where the guilt of the defendant was called into question." Excepting of course, Greg Taylor and Derrick Allen, who different courts have already released from prison due to lack of evidence of guilt... but I guess we're to just trust that there aren't any more innocents lurking in the hundreds of other cases.

2) "Director Peg Dorer said the N.C. Conference of District Attorneys has lobbied for changes to the discovery statute" That's right, lets just change the rules so we can hide with abandon... of course, the constitution can't be amended and these cases where exculpatory blood evidence was hidden would still be a problem... but without the discovery laws, it might simply have been a problem that went unnoticed.

Well, I guess the DA's Conference would probably be OK with that.

See article, here.

Wednesday, March 23, 2011

Update on Capital Murder Trials

Al Bellamy, in Iredell County: The State rested in its guilt case, but not before turning over 1800 pages of detectives notes to the defense that hadn't been shared before. The judge continued the case to Monday, when he will hear the defense's motion for a mistrial, due to the extensive discovery violations.

James Richardson, in Pitt County: The State is moving through its guilt phase evidence. Today, it put on an eye-witness, claiming to identify the defendant as the shooter, who had never been interviewed by police and only came forward 2 weeks ago to tell his tell (after months and months of media blitz in the case, including nearly 100 articles in the local paper/television).

Tony Summers Receives Death Sentence

Yesterday, a Guilford jury sentenced Tony Summers to death for a 2006 rape/murder in Greensboro.

The defense had argued that, due to Mr. Summers' serious brain injury and intoxication, he was not the worst of the worst and could find redemption in a sentence of life without parole. The jury rejected this and found that death was the only appropriate punishment.

Monday, March 21, 2011

Summers Jury Deliberates on Sentencing


In Guilford County, the jury in the case of Tony Summers is deliberating on whether he should live the rest of his life in prison or die by lethal injection. Deliberations began on Thursday afternoon. Today is the 3rd day of deliberations.

Press Here.

Wednesday, March 16, 2011

Update on Capital Murder Trials

In Jury Selection:
James Richardson, Pitt County. Richardson is charged in a drive-by shooting outside a Greenville nightclub. The litigants have seated 12 jurors and are in the process of choosing alternates. Openings could happen this week. Press here.

In Guilt:


Al Bellamy, Iredell County: Bellamy is charged with shooting two people in Statesville. Monday, the parties opened and the State has begun putting on its evidence. One of the first witnesses, a law enforcement officer, gave testimony about one of the victim's dying declaration that it was "Scoot Rock" (not Bellamy) who killed him. The scene of the shooting was described by many witnesses as chaotic. Press here.

In Sentencing:

Tony Summers, Guilford County: Jurors returned a verdict of guilty in Summers case on Monday, for the rape and murder of a Greensboro woman, in the presence of her children. It appears from press reporting that the jury has begun hearing the sentencing phase evidence, which may rely, in part, on evidence of Mr. Summers brain damage.

No word on the cases of De'ante Harris in Robeson County and Danny Thomas in Columbus County.

NC Supreme Court Criminal Decisions, March 14, 2011

The high court issued two criminal decisions this month:

State v. Lane. Direct appeal of capital murder conviction in Wayne County from July 2005.


In 2008, this case was remanded to Superior Court in light of Indiana v. Edwards, on issue of whether Defendant was competent to waive trial counsel-- in that gray area of Edwards where a Defendant is competent enough to stand trial under Dusky, but not enough to represent himself. The trial court held that the defendant was competent to waive trial counsel. The issue was back before the court on that issue and the other original issues raised.

At the trial level, the defendant was evaluated for competency by Dix hospital and was ultimately found competent. His trial counsel notified the court of their intent to file a motion to set aside the death penalty on the basis that the defendant was mentally retarded. This angered the defendant and he fired his attorneys and was allowed to proceed pro se.

His trial began, and due to concerns of the trial judge, the defendant was again sent to Dix for a competency analysis. A hearing was held and he was found competent to stand trial and represent himself, despite his mental disorders (PTSD, anxiety disorders, and other "mental symptoms") and illiteracy (reads at kindergarten level). The judge appointed the attorneys as standby counsel.

Defendant finally reached a trial and, at trial, the defendant requested that his standby counsel represent him. He was convicted on all counts (murder, kidnapping, rape, sex offense, and indecent liberties). At the penalty phase, defendant instructed his counsel to take no part and present no evidence, essentially representing himself. At the close of the sentencing hearing, the jury sentenced him to death.

1st) Trial court did not err in allowing defendant to discharge his trial counsel, as he does not fall in the grey area of borderline competence--defendants who are competent to stand trial but not to represent, as the USSC identified in Edwards. Defendant's waiver of counsel was knowing and voluntary.

2nd) No error in refusing to allow Dr. Wilson to testify about extreme effects of defendant's alcohol withdrawal, where, on voir dire, the doctor stated that he couldn't state whether or not the defendant had these kinds of effects when he made his confession, as such testimony was not relevant to any guilt phase issue.

3rd) Survives proportionality review.

State v. Sargeant. Watauga County. Ordering a new trial in a 1st degree murder case (that resulting in a life without parole sentence) (affirming the court of appeals decision).

1) Trial court erred in excluding, as hearsay evidence, a statement which implicated the state's sole eyewitness as the real perpetrator of the crime. This should have been admitted under the residual hearsay exception.

2) On the issue of partial verdict, the court rules that issue moot (as unlikely to recur).

Monday, March 14, 2011

Tony Summers found Guilty

In Guilford County, a jury returned a verdict of guilty in the case of Tony Summers. A sentencing hearing will begin soon, where the same jury will decide if Mr. Summers will be sentenced to death or life without the possibility of parole.

Wednesday, March 9, 2011

Murder Trials Proceed

In Iredell County, the capital murder trial of Al Bellamy is in jury selection. Mr. Bellamy is charged in a 2004 shooting that killed two people. Seven jurors have been seated.

In Guilford County, the state has rested in the case of Tony Summers. The defense has begun its case, apparently arguing that, due to Mr. Summers severe brain injury, he was unable to form the specific intent necessary for 1st degree murder (thus only liable for 2nd degree murder). To prove 1st degree murder, the state must prove that the assailant premeditated and deliberated, something that persons with diminished mental capacity cannot do.

In Columbus County, I could find no press in the case of Danny Thomas, so I assume it is still in jury selection. Likewise in the Robeson County case of De'ante Harris.

Also, next Monday, the capital murder trial of James Richardson is scheduled to start in Pitt County.

In Wake County, the state opened today in the non-capital murder trial of Brad Cooper are set to begin tomorrow. The defense will open tommorow morning. Press is too numerous to cite here...

Tuesday, March 8, 2011

NC Court of Appeals Criminal Decisions (3/1/2011)

Nothing I got very excited about...

State v. Banks. Buncombe County. Appeal of first degree murder conviction.

An apparently high school aged kid killed his girlfriend's new boyfriend, but not before posting things on his Myspace page, like, "RIP Keith."

1) Sufficient evidence where defendant made prior threats, confessed to his girlfriend, and some shell casings were found in his car and home of the same caliber as used in the shooting.

2) At trial, defendant's girlfriend was called as a witness for the state and denied hearing the defendant confess to her. The state then impeached her (after she said she wasn't refreshed) with her prior statement to police that he had confessed. Defendant argues could not impeach its own witness by prior inconsistent statement. Under State v. Hunt, the state cannot use a "subterfuge" to put up a witness who says something else, solely to impeach them and get in the prior inconsistent statement.

Hunt
states that: "once a witness denies having made a prior statement, the State may not impeach that denial by introducing evidence of the prior statement." Here, the witness didn't deny making the statement. She said she did give a statement, but she couldn't remember what the statement was and didn't remember the defendant confessing to her. The COA said this is different than Hunt and thus admissible.

Further, the limiting instruction--that the prior statement only be considered for impeachment, not as substantive evidence-- protected from undue prejudice. Ha!

3) No error in allowing officers to then testify about the above statement (as substantive evidence). Here, these statements were admissible exceptions to hearsay as they were offered to explain the actions the officers later took. In other words, they weren't offered for truth, but rather to explain why the officers investigated the case in the way they did.

Because the defendant didn't make an objection under Crawford or the 6th Amendment, any confrontation issues were waived.

4) No prejudice from the district attorney crossing the defendant on his girlfriend's statements, as objections to those questions were sustained.

5) No error in denying motion to continue.

State v. Buddington. Rockingham County. Trial court dismissed a firearm by a felon indictment. Court of Appeals reverses.

Defendant challenged the firearm by a felon conviction under Britt v. State, in an unverified pleading, alleging that that the law was unconstitutional as applied to him. The judge granted the motion and dismissed.

Because no evidence was presented at the hearing, the court reverses, as the order did not rest on adequate factual basis.

State v. Carter. Randolph County. Appeal of conviction for indecent liberties. The defendant was acquitted on counts of 1st degree statutory rape and sex offense.

Evidence in the case primarily consisted of the testimony of a 6 year old (4 at the time of the offense), stating that the defendant "stuck his tail in my butt" and the like, and another young child, 4 years old who was 2 1/2 at the time of the incidents, who said something similar. Defendant's mother ran a day care and the allegations were that he was molesting the wards.

First: the 4 year old was competent to testify. There is no age of competency as a matter of law. A person is qualified unless they are incapable of communicating or do not understand the duty to tell the truth. On voir dire, the child made statements indicating she knew the difference between the truth and a lie and was generally responsive to questions.

Second: sufficient evidence of indecent liberties. Indecent liberties is proved where: (1) defendant 16 or more and 5 years older than child; (2) willfully takes or attempts to take (3) any immoral, improper, or indecent liberties, (4) with any child under 16 (5) for the purposes of arousing or gratifying sexual desire. Defendant only challenges the intent requirement. While there is no direct evidence, the sexual nature of the contact (and evidence that he was watching pornography during the assaults) gives rise to a reasonable inference of sexual intent. Thus, sufficient evidence was presented for jury determination.

Third: state's expert (a doctor who found some physical evidence consistent with abuse) blurted on cross that "a child her age with that much sexual knowledge indicates that something happened." This was admitted without objection (i.e. non-responsive). First, as a matter of law, statements elicited by a defendant on cross cannot be prejudicial as a matter of law. Second, counsel's performance was not so deficient that it undermines confidence in the outcome. Therefore, no ineffective assistance claim may lie.

State v. Eaton. Rowan County. Appeal of conviction for trafficking in hydrocodone (i.e. vicodin).

Defendant indicted for trafficking 4 grams or more, but less than 14 grams of opiate (vicodin). Defendant was caught selling 20 pills of hydrocodone. At trial, his motion to suppress was denied and he was found guilty and sentenced to 133 to 169M. (That's a year for every 2 pills!)

The Search. An officer was in a high crime area and saw 5 people standing in the middle of an intersection. He turned on his blue lights and all five people disbursed in different directions. He "asked" them to come back and all did but the defendant. He kept calling and, when the defendant turned around to come back, he saw the defendant throw a bag of drugs on the ground. Defendant was then arrested. There was no seizure here, so the it doesn't matter whether the stop was legal or not. A seizure doesn't occur until the defendant complies with a show of force. Here, he walked away and threw the drugs. This means no stop and abandonment of the drugs, which the police were free to collect (similar to USSC California v. Hodari D (1991)).

Habitual Felon. Defendant next challenges conviction for habitual felon, on grounds that that the trafficking statute includes within it specific sentencing rules and thus the structured sentencing act does not apply to it.

The trafficking statute 90-95(h)(4)(a) prescribes that any person convicted (of what defendant was convicted of) shall be "punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 84 months..." and pay a $50,000 fine. (Normally, class F felonies are punishable by 10-41M in prison and, in some cases, are eligible for probation).

The habitual felon statute indicates that anyone convicted of "a felony" (who has 3 prior felony convictions) shall be sentenced as a class C felon (class C punishable by44 to 393M in prison, depending on prior record).

Allowing otherwise would lead to the absurd result that someone convicted of a simple felony possession could be sentenced as habitual (and more harshly) than someone convicted of trafficking.

Statements. Last, no objection to statements of police that defendant referred to them in racial slurs. Even if this testimony was not appropriate (and should have been excluded under 403), it was not plain error.

State v. Elkins. Buncombe County. Appeal of common law robbery conviction.

1) For common law robbery, adequate evidence of theft by force or fear where defendant asked for money with his hand in his pocket and cashier gave the money, believing he had a weapon (he did not).

2) Statements of the victim that "I thought he had a gun" was not improperly speculative. Rather, it was an opinion based on firsthand observation.

3) No plain error from prosecutors use of leading questions on direct (i.e. "based on your fear that he may have a gun, is that when you gave him the money?"), opinion evidence of officer ("I felt like I was building a solid case" and some hearsay from officer about friends telling him that defendant was wearing a different jacket than usual.

Reversed the restitution award, as it was unsupported by evidence.

State v. Gillespie. Rowan County. In second degree murder sentencing, judge found one aggravating factor and multiple mitigating factors. Was within judges discretion to find that the aggravator outweighed the mitigator and sentence the defendant in the aggravated range.

Defendant complained that the judge discounted one of his mitigators (that he was suffering from a mental condition) as he had already received benefit in the form of a 2d plea due to this.

JUDGE SPAINHOUR (left): "I find the following mitigating factors: No. 3A, the defendant was suffering from a mental condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the offense. Therefore, I think that's why it's not murder in the first degree. It's murder in the second agree [sic], classically, I think."

The COA said the defendant read too much into this comment and it doesn't show that the judge improperly refused to consider the statutory mitigator.

State v. Green. Wake County. Appeal of DWI.

Officer testified at trial that, based on his observations of the defendant, he had the opinion the defendant was drunk. A BAC was taken later at the stationhouse of .19. The state offered Paul Glover as an expert to testify using "retrograde analysis" as to the BAC at the time of incident (3 1/2 hours prior), extrapolating from the later BAC analysis taken at the station, which he alleged was .24.

1) No abuse of discretion to allow expert to testify on retrograde analysis, under rules 702-3. Under Howerton, expert testimony is admissible if "(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony?(2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?" Here,d defendant only challenges the 2nd prong. The court found that the expert had extensive credentials and was qualified to testify.

2) No error in allowing expert to testify that, based on his analysis, the defendant drank 88 ounces of wine. This was not an improper expert opinion on credibility (defendant claimed he only drank 5 glasses of wine or 25 ounces). Rather, it was an opinion about the likely consumption based on the BAC.

3) No error in expert saying that 5 glasses of wine was 25 ounces, based on experts knowledge of alcohol consumption.

4) No Blakely error in court finding the aggravating factor (rather the jury) of BAC greater than .16, because the court punished in the presumptive range and, as such, didn't need to find aggravating or mitigating factor at all.

State v. Hill. Buncombe County. Appeal of Robbery with Dangerous Weapon (RWDW).

At an ATM, an assailant approached the victim and asked for his money and "pointed his hand with an object in it." The victim grabbed the assailant's hand, at which point the assailant grabbed the money and ran. Afterwards, the victim had a laceration on his wrist. Assailant ran and got in a pickup truck on the passenger side. Defendant was later (shortly later) arrested with the assailant in the pickup truck.

To prove "dangerous weapon," state also put in 404(b) evidence of another robbery earlier in the day at another ATM where the assailant had a knife. Defendant's objections to this testimony were overruled, despite defendant having previously had charges in that robbery dismissed.

First, sufficient evidence to prove robbery. Defendant was present at the crime and there was sufficient evidence for a jury to find that he was a participant as the getaway driver.

Second, evidence of the other robbery was permissible under 404(b). The crimes were substantially similar--involving the same truck, with 2 people in it, using a deadly weapon, at an ATM, the same night.

Judge Hunter dissented, on ground that state failed to prove there was a dangerous weapon used. He would remand for a new trial on common law robbery (which the trial court did not instruct on as a lesser).

State v. Johnson. Durham County. Appeal of conviction for murder and discharging a firearm into an occupied vehicle.

1) No error in judge's limiting of voir dire. To win a voir dire claim, you must show prejudice and that the court's actions were "manifestly unsupported by reason and so arbitrary they could not have been the result of a reasoned decision." Court sustained objection to these 4 questions on witness credibility.

"Now, what type of facts would you look at, Mr. Colopy, to make the determination if someone’s telling you the truth". Ruled improper stakeout question on witness credibility before he had been instructed on how to assess credibility.

(After Judge gave instruction in light of prior objection). Ms. Falcon, would it be important to you that a person could actually observe or hear what they said they have from the witness stand? Properly sustained, because defense was seeking to "indoctrinate jurors" regarding a potential issue.

Ms. George, would you also – one of the things the judge talked about also is if someone’s getting a benefit from testimony. Would you look at that and make a determination of whether you believe their testimony or not?" While questioning on interested witnesses is usually permissible, here, the state hadn't opened the door by mentioning this and the questions here were about "benefit" rather than the mere existence of a plea (pretty thin!

"Mr. Trullinger, if you hear the evidence, [sic] the see the evidence that comes in, and you find evidence on three factors – or three elements beyond a reasonable doubt, but you don’t find on the fourth element, what would your verdict be?" Court found this an improper question as it gets the juror to "pledge himself to a future course of action."

Short lesson--it's nearly impossible to win voir dire claims on appeal....

2) Not plain error to admit handwritten statement of one of the witnesses, as minor additions and variations in the statement were not problematic and it was largely corroborative of his in-court testimony.

State v. Lawrence. Hoke County. Appeal of two counts attempted robbery, kidnapping, breaking and entering and conspiracy.

A group of people planned a drug-house robbery and recruited defendant. Their plan was to catch the victim walking out of the house and force them back into the house and threaten her for money. Police arrive to check out their looking suspicious, still in their car, in front of the house. They fled.

The group re-grouped and tried again, this time a neighbor saw them. The neighbor grabbed his pistol and made a citizen's arrest, catching some of defendant's co-conspirators in the woods behind the victim's house. Defendant was later found in Mississippi, after his one of his co-defendants confessed.

1) Sufficient evidence of attempted kidnapping, even though the defendant was never in the presence of the intended victim. The group bought zip-ties and planned to tie up the victim and rob her. This is the necessary intent for kidnapping. There was a sufficient overt act for the kidnapping, including stealing cars, buying equipment, then going and waiting at the victim's house. Lying in wait is an act beyond mere preparation, and constitutes an overt act sufficient for attempt. The court makes the same holding on defendant's challenge to attempted robbery and attempted b&e.

2) Defendant challenges the two conspiracy convictions, on the argument that it was just one conspiracy and the group made two attempts to complete it, rather than it being two separate conspiracies. "Multiple agreements or overt acts which arise from a single agreement do not permit prosecution for multiple conspiracies." Court found this is only one conspiracy and reverses conviction on the 2nd conspiracy.

3) Court properly gave flight instruction, where defendant fled to Mississippi after the incident.

4) Trial court improperly instruction jury on conspiracy to commit robbery with a dangerous weapon. The court did not list all 4 elements for robbery with a dangerous weapon, but rather just said it is a robbery while using a firearm. New trial on that issue.

State v. McNeil. Sampson County. Appeal of felony breaking and entering, larceny, and possession of a firearm by a felon.

First, indictment for felonious larceny was defective, as it failed to allege ownership of the item stolen. For larceny, the state must specifically aver in the indictment what was stolen, who owned it, and that the owner was a person or legal entity capable of owning property. Arrests judgment.

Second, sufficient evidence of the b&e and possessing the firearm that was stolen where victim identified defendant and law enforcement identified defendant's automobile in the area. Further, where proof was had that a gun was stolen and defendant stole it, this was sufficient circumstantial evidence to prove possession of firearm by felon (even though no one ever specifically saw him with the gun). Further, there was evidence of constructive possession, as the gun was later found in a house he had access to, he knew it was there, and he behaved suspiciously in connection to it.

Third, trial court comments that "The defendant, for whatever reason and only known to him, has refused to return after the lunch recess" did not deprive defendant of a fair trial. Judges cannot comment on the evidence. This statement was not an opinion on anything to be decided by the jury and thus not objectionable.

Fourth, court erred in awarding restitution, in the absence of evidence of value.

State v. Scruggs. Guilford County. Appeal of denial of motion to suppress.

Defendant challenges his auto stop on the basis that the UNC-G Police Officer did not have jurisdiction to stop him on UNC-G Campus property. There existed at the time a "Mutual Aid Agreement" between UNC-G police department and Greensboro, extending jurisdiction off of campus in certain situations, including "have probable cause to believe that a misdemeanor has been committed and the person to be arrested might otherwise evade apprehension or cause harm to himself, other people or property unless immediately arrested."

The court did not resolve whether this situation would qualify, but rather concluded that, even if it didn't, it was not a "substantial violation" of 15A, which is necessary to have a remedy of suppression.

State v. Wiggins
. Lenoir County. Appeal of 1st degree murder conviction, assault with a deadly weapon inflicting serious injury, and 3 counts of possession of firearm by a felon. and sentence of life without the possibility of parole.

Defendant shot three people for no apparent reason in separate incidents (about 3 hours apart). Two lived, one died.

First, defendant was wrongfully convicted of 3 counts of possession of a firearm by a felon. These acts constituted one act of possession. Reverses judgment on 2 counts.

Second, no plain error in courts failure to instruct on second degree murder.

State v. Wright. Bladen County. Appeal of 6 convictions related to an assault.

Someone, presumably the defendant, broke into the victim's trailer and beat her with a pipe, crushing her skull. He was convicted of attempted murder, secret assault, and assault with a deadly weapon with intent to kill inflicting serious injury.

1) Secret Assault: Vacated due to insufficient evidence. To prove a secret assault, you must show: (1) assault, (2) with malice (3) with a deadly weapon (4) with intent to kill and (5) in a secret manner. To prove "secret" it must be an assault from an ambush or by lying in wait. Here, the attacker broke into their house, screamed, and assaulted them. While this is awful, it's not lying in wait.

2) Classification of Out of State Convictions:

3) SBI Blood Testimony: SBI serologist Jodie West tested defendant's clothes with phenolpthalein and stated that it gave "an indication that blood would be present." He also testifed that certain plant materials, other than blood, could give a false positive, but "But in my training and experience I have never found these plant materials to give a positive reaction." Then Agent Hinton testified that she found DNA mostly of Locklear (victim) and some of the defendant.

Admission of West's statements was not plain error. The agent did not misrepresent, since he said it "gave an indication that blood could be present" (rather than overstating and saying "it's blood").

5) Motion to Continue: Defendant's motion to continue to test the DNA and blood (and some hairs that the state didn't test) with his own expert was denied. He challenges this under the 6th and 14th amendment. The court found determinative that the motion came on the eve of trial and no request for an expert was made during the 6 months the defense attorney had to prepare for trial.

5) 404(b): State entered evidence of a prior breaking and entering by the defendant and statements defendant supposedly made to others that he had killed people before. These are not plain error.

6) Evidence: Not plain error where hearsay admitted without objection.

Thursday, March 3, 2011

Capital Trials Move Forward

At the start of the week, there were five capital murder trials taking place in the State. Now, there are only three left:

Tony Summers: in Guilford County, is moving through the guilt evidence. Testimony has been entered from the medical examiner, who described the stabbing that killed the victim, and testimony from the victims two children (11 and 16) who were present during the murder and assaulted as well.

De'ante Harris: Robeson County. In jury selection.

Danny Thomas: Columbus County. In jury selection. Thomas is facing 4 counts of 1st degree murder. The murders occurred over a few months in late 2005.

Ebony Watson: Lee County. Pleaded guilty to second degree murder to in the beating death of her boyfriend's child. Watson received a probationary sentence (60 months of probation) with a suspended sentence of 94-122M hanging over her during probation. She had been incarcerated for nearly 21M pending trial.

Melba Slaydon: Randolph County. Pleaded guilty to 1st degree murder in exchange for the state tabling the death penalty against her and her son, who will likely be tried later this year.

Wednesday, March 2, 2011

A Mother's Love

Today, in Randolph County, Melba Slaydon, 73, took an Alford plea (no contest) to the 1st degree murder of her husband. Mr. Slaydon died mysteriously in 2007.

The plea, which Ms. Slaydon entered while maintaining her innocence, guarantees that her son, Ronald Gibbs, who is also charged, will not face the death penalty in his trial later this year.

The plea was entered on the 2nd day of jury selection. Ms. Slaydon was sentenced to life without possibility of parole.

Tuesday, March 1, 2011

Cook found guilty of involuntary manslaughter

After 11 hours of deliberation, the jury rejected the state's claims of malice and found Raymond Cook guilty of involuntary manslaughter and not guilty of 2nd degree murder.

A sentencing hearing is being held now.

In North Carolina, involuntary manslaughter is a class F felony, while 2nd degree murder is a class B2 felony.

What this means, is that for someone with a limited prior record, a level II offender, the sentence possibilities are drastically different.
  • Second Degree Murder: presumptively punishable by 12-15 years in prison.
  • Involuntary Manslaughter: presumptively punishible by 15-19 months in prison, with option for intermediate sentence--which is an intense probationary sentence.
By its verdict, the jury has spared Mr. Cook 10+ extra years in prison. Most likely, given the tenor of the case, the judge will sentence to an active sentence, but Cook could avoid prison entirely.

Read more here.

Four Capital Murder Trials Proceed Around the State

Four Capital murder trials are in process around the state:

Ebony Watson, in Lee County, is in jury selection. Ms. Watson is chaged with felony child abuse and murder of her boyfriend's son.

Melba Slaydon, in Randolph County, began jury selection Monday. Ms. Slaydon is charged with the mysterious death of her husband. Ms. Slaydon is 73, her husband was 83,

De'ante Harris, in Robeson County, began jury selection Monday. Mr. Harris is charged with shooting another man during an altercation. An officer was present trying to break up the fight when the shooting occurred.

Openings in the case of Tony Summers, in Guilford County, began Monday. Mr. Summers is charged with raping and murdering a woman in her home, and assaulting her children with a knife.

Wake County Murder Trials

One case ends, another begins...

In the case of Raymond Cook, the jury continues to deliberate on whether the killing of Elena Bright, a ballerina with the NC Ballet, was murder or involuntary manslaughter. Cook was intoxicated and speeding when his car collided with Ms. Bright's and killed her. The jury continues to deliberate on the issue of malice--whether his actions went beyond criminal negligence and showed reckless indifference to human life.

Yesterday, jury selection began in the case of Brad Cooper. Mr. Cooper is charged with killing his wife. His wife went for a run and never returned. She was found 2 days later, strangled. Jury selection is slated for this week and the court may begin hearing evidence next week. No jurors were seated the first day.

WRAL has been streaming both of these cases.