Friday, April 29, 2011
The state will put on rebuttal witnesses (if any) Monday and the case could go to the jury next week.
Sunday, April 24, 2011
Interesting article here.
Thursday, April 21, 2011
State v. Beckelheimer. Appeal of sex offense case.
Court erred in allowing 404(b) testimony in sex offense case of prior sexual conduct between defendant (at age 15) and another boy (age 11). "Sexual exploration with a
child in the same general age range is quite a different thing than a sexual act perpetrated by force by a 27 year old man upon an 11 year old child."
State v. Clark. Appeal of statutory rape conviction.
First, defendant's confession was not taken in violation of the constitution, as he was not in custody when interviewed. He approached police, indicated a desire to talk, and road to the police station in an unmarked car-after being given the option to drive separate, and then confessed.
Second, no error in ordering satellite based monitoring because 1st degree statutory rape, by definition is an aggravated offense. SBM can only be ordered for aggravated offense--those involving children under 12 or force in the definition of the elements. Although 1st degree statutory rape involves children under 13 (thus doesn't meet the minor portion of the aggravated offense), the court found that, by definition, intercourse necessary for rape requires force (even though the count specifically prevents consent/lack of force from being a defense).
State v. McLean. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), one count of just AWDW, and one count discharging firearm into an occupied motor vehicle.
1) Sufficient evidence of AWDWIKISI. Defendant challenges that there was no serious injury. Factors in determining ISI are: "(1) pain and suffering; (2) loss of blood; (3) hospitalization; and (4) time lost from work." Competent evidence of any one of these factors are sufficient for jury determination. Here, the victim was shot. Even though there was no significant loss of blood (there was bleeding), no hospitalization, and the witness testified adamantly that there was no pain caused, this is still sufficient evidence for a jury to determine ISI.
2) Trial court did not err in its instructions on discharging a firearm into a motor vehicle. The judge strayed from the pattern in the intent section and said, "willfully and wantonly" rather than "intentionally." Under case law, "wanton" means "intentional." Not error.
State v. Nolan. Appeal of possession of marijuana with intent to sale, possession of drug paraphernalia, carrying a concealed weapon, and maintaining a dwelling.
Defendant appeals a suppression issue. He was stopped during a checkpoint. Checkpoint was valid, as it had a tailored purpose (DWI). Defendant's claims that his search (not his stop) are not perfected, as they were subject to a second suppression motion that was never ruled on by the trial court.
State v. Pell. Appeal of 16 counts of "felony secret peeping." Defendant challenges the order requiring him to register as a sex offender.
Secret peeping is peeping into a room occupied by another person. 14-202(a). This is a felony if you take photos, while secret peeping, for purposes of gratifying sexual desire. 14-202(d). Under 14-202(L), a felony violator can be required to register as a sex offender if "the sentencing court rules that the person is a danger to the community."
1. N.C.G.S. 14-202(L) is not unconstitutionally vague. "a statute is unconstitutionally vague if it either: (a) fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited; or (b) fails to provide explicit standards for those who apply [the law]."
The term "danger to the community" is undefined in the statute. Must define with the purposes of the sex offender program-- to protect communities from persons convicted of sex offenses against minors. This is not unduly vague.
2. Here, it was error to order the defendant to register. At sentencing, the state's expert stated there was a "low to moderate risk of re-offending" and other testimony showing the defendant's alcohol abuse, mental problems and "paraphilia" were in remission. As such, there was inadequate basis to order the registration.
State v. Womack. Appeal of possession of MDMA case and habitual felon sentencing (107 months).
Defendant challenges on ground that his counsel was ineffective. While counsel was ineffective by conceding guilt to three prior felonies (for habitual felon)), this was not a Harbison violation. Admission to "status offense" does not require a Harbison inquiry. Further, Harbison inquiries don't apply to sentencing proceedings. Finally, the state evidence of habitual felon status was overwhelming, and counsels errors were unlikely to have affected the result.
Wednesday, April 20, 2011
After weeks of testimony, it appears the main evidence against Cooper is inuendo and records in his computer suggesting he googled the body dump site days before the murder.
The Defense attempted to begin their case by putting on forensic computer expert. The Judge refused to qualify the expert and limited his testimony. Cooper's lawyer, Howard Kurtz (right) had the following colloquy with Judge Gessner:
“I don't understand the court's order,” said Kurtz, clearly frustrated.
“What is it you don't understand?” responded Gessner. “He can testify as an expert witness in network security and vulnerability assessment of that system.
"But as far as any forensic analysis, I'm not going to allow him to testify to it, because I don’t believe he is properly qualified as a forensic analyst."
After the jury was scurried out of the court room, Kurtz asked for a mistrial.
"I believe your bias throughout this trial has become apparent...I believe your rulings have been consistently outside the bounds of prudent jurisprudence."
This case is a mess and seems to be getting messier. The press is a little vague on this, but apparently the day of the alleged web viewing, there were a bunch of "invalid time stamps"--presumably suggesting tampering. (Earlier in the trial, a detective testified that he "accidentally" erased the victim's cell phone data).
After weeks of jury selection, State v. Danny Thomas has begun in Columbus County.
Thomas is charged with the murders of 4 people in Columbus County. Press reports are a little vague on what happened.
Monday, April 11, 2011
This evening, a jury found Paul Seelig guilty of 21 counts of what the press is reporting as "fraud" (I'm guessing it's obtaining property by false pretenses (a class H felony)) for selling bread under the false pretense that it was gluten-free.
It appears that he will be sentenced in the morning. Each count carries a possible term of nearly a year in prison.
Does this indicate that prosecutors may seek out these kind of harsh punishments in other areas of false advertising? Even corporate false advertising?? For example, McDonald's selling a "bowlful of wholesome" ... it's oatmeal that has more sugar than a snicker's bar...
Friday, April 8, 2011
State v. Gray. Appeal of 1st degree sex offense and indecent liberties case. Defendant sentenced to 25 years.
Court erred under 404(b) in admitting evidence that, in 1990, defendant admitted to committing "lewd or sexual acts" with a 4 year old boy. Court said that, under 404(b), you use both remoteness in time and similarity as factors in making a determination of the admissibility of prior bad acts (if closer in time, they can be less similar, if older, the "commonalities become less striking").
Remoteness: Court found that, absent clear evidence of tolling due to defendant's incarceration, must count from date of offense (rather than date of release). As such, this prior crime is 20 years old.
Similarities: Prior was rape of a 4 year old boy when he was at a babysitter's house that the defendant knew. Current case was the inappropriate touching of a 5 year old girl while she was visiting the defendant's home. Both involved young children at a caretakers house, but were different sex of victims and involved different kinds of assaults.
Here, because of the remoteness of time and the dissimilarities, the court found that the evidence should have been excluded under 404(b). Such error was prejudicial.
State v. Neal. Appeal of trafficking conviction, on issue of denial of motion to suppress. Trial court failed to make appropriate findings on whether or not any promises were made to induce the defendant's consent to the search. Remanded for the limited purpose of making those necessary findings.
State v. Oliver. Appeal of conviction for sex offense, indecent liberties, and crimes against nature. Defendant sentenced to 19 years.
Admission of prior bad acts of child sex assaults was not plain error. The prior assaults were substantially similar, as he had a strong personal relationships with the victims parents, used threats of parental disbelief to coerce submission, and started with inappropriate touches during roughhousing and escalated to more serious assaults. Further, the prior assaults were not remote in time, being only 2 years before the charged conduct.
No error in the trial court failing to instruct that the 404(b) evidence could not be used to as character evidence/action in conformity therewith. Instruction (from the pattern) that the 404(b) evidence was only relevant to identity/common scheme was sufficient.
No error in failing to grant mistrial where, right before deliberations, someone approached one of the jurors and said, "Just quit and I'll let you go home." The court voir dired on this, and no evidence that it affected their verdict.
Finally, trial court erred in enrolling defendant in lifetime satellite based monitoring. Sex offense and indecent liberties are not aggravated offenses. Aggravated offenses are those that, from the elements of the crime, not the underlying facts, involve a sex act with a child under 12. Neither of these require that the child be under 12.
State v. Sneed. Appeal of conviction for robbery, possession of stolen handgun, and eluding arrest.
No plain error in admitting proof that gun was stolen:
- NCIC database info about a gun was reported stolen in Miami. NCIC database is a database of guns, by serial number, and their status. When a gun is stolen, the owner reports it to the police, who then enters the serial numbers into the database. This data is hearsay. However, it may be admitted to prove a gun is stolen under the 803(6) business records exception. The court found that the Detective was qualified as a custodian and could testify as such to prove the records authenticity.
- Hearsay of call from Detective to Detective in Florida-- not addressed, but found not prejudicial error if it was error at all.
- Florida police report-- not addressed, but found not prejudicial error if it was error at all.
First, defendant argues that his constitutional rights and section 15-176 was violated when he was forced to wear prison clothing during jury selection and the first day of trial. This issue was not properly preserved for appeal.
Second, defendant challenges 404(b) evidence. A witness testified that prior to the current pharmacy break-in (to steal opiates), defendant broke into another pharmacy, but failed to find any opiates. Court found the incidents sufficiently similar and close in time and relevant. Not plain error.
Third, sufficient evidence of possession of controlled substance "hydrocodone," even though state conducted know chemical analyses of the pills, since it was readily identifiable by other means.
State v. Wright. Conspiracy and accomplice conviction in home invasion robbery.
Defendant requested an instruction on withdrawal from the conspiracy. Generally, co-conspirators can be convicted for any crimes of the other if those crimes are committed in furtherance of the conspiracy. If a party withdraws from the conspiracy, however, they are not liable for future crimes committed by co-conspirators.
Defendant requested a withdrawal instruction to the jury. The trial court denied. The COA affirmed this, on the grounds that there was not evidence to support a theory of withdrawal. To withdraw from a conspiracy, one must announce it and make plain to the others that he is no longer participating. Here, defendant just snuck away after kicking open the door to the house. This is not enough to support an instruction on withdrawal.
Thursday, April 7, 2011
This data calls into question the death penalty machinery, especially in cases from the 1990s and early 2000s.
How should we, as a society, best respond to this? Well, Skip Stam and the Republicans have an easy answer--repeal or gut the racial justice act and hope that this whole discrimination issue will just go away.
If passed by the Republican congress, Governor Purdue will have to choose whether to act on the side of justice and veto the legislation, or go along with the Republicans and sweep racial discrimination under the rug.
Wednesday, April 6, 2011
After waiting 3 days for the jury to return a verdict, the state decided not to ask for a death sentence and no sentencing hearing went forward in the case.
Is this a classic example of the state proceeding on a death theory to bolster a weak case? Or was the state just convinced that this jury could not give death? Why would the state waste all these resources pursuing a capital trial (which is 3 to 10 times more expensive than a non-capital murder case), then abandon that effort after the trial?
Strange happenings in Pitt County. Press here.
Monday, April 4, 2011
The jury has been out for two days now deliberating on guilt/innocence in the capital murder trial of James Richardson in Pitt County.
During the trial, the jury heard testimony of a variety of eye-witnesses--some who identified Mr. Richardson as the shooter and others who said he was not.
If convicted, Mr. Richardson could face the death penalty.