Tuesday, May 31, 2011

Life for Shelton Mills

Today, the jury decided unanimously to return a sentence of life without possibility of parole in the case of State v. Shelton Mills, in Pitt County.

Excerpt from press accounts:

Defense attorney William Gerrans told the jurors that representing Mills was one of the most frustrating experiences of his life and nearly wore him out.

“Then I realized he can't help it,” Gerrans said. “Shelton Mills is mentally retarded, developmentally disabled and severely mentally impaired.”

Gerrans said the death penalty is not a deterrent for criminals like Mills.

“Vengeance will not bring peace to anyone or stop others with mental retardation and developmental disabilities from doing the same thing,” he said. “We only mark our souls when we approve of death.”

Gerrans reminded the jurors that the state and the victims' families offered Mills a sentence of life without parole, which he turned down.

“He was just too sick to take the deal, just like the time he jumped off the back of a moving truck. Now they're asking you to kill him,” Gerrans said.

Mills' attorney asked the jurors to spare Mills' life.

“We're better than what he did that night,” he said.

Sunday, May 29, 2011

Shelton Mills: Verdict 2 of 3

On Friday, jurors in the Shelton Mills case -- a capital murder trial in Pitt County -- returned a verdict that Mr. Mills is not retarded.

The ruling sets the stage for a final, full-blown sentencing deliberation. Capital trials normally have two phases: a guilt/innocence phase and, if a jury returns a verdict of guilty, a sentencing phase (i.e. death or life without parole).

However, where the defendant has significant evidence of mental retardation, the judge may add a middle phase. Under NC law (and U.S Supreme Court decisions), the mentally retarded are inelgible for execution. This third phase asks the jury to answer just only the issue of mental retardation. If the jury finds that a defendant is not mentally retarded, they must then enter the full sentencing deliberation and determine whether death is the appropriate punishment.

Mills had been diagnosed by multiple psychologists as mentally retarded and scored a 71 on a standardized IQ test. Under NC law, a person must score a 70 to be mentally retarded, although there is substantial wiggle room in IQ tests, as the standard measurement of error can be 5 points and other factors can cause a raised IQ, even among the mentally retarded.

The jury rejected those points and found Mills eligible for death. They will resume on Tuesday to decide if he is the worst of the worst and should die for his crimes, despite his low intelligence.

Tuesday, May 24, 2011

Shelton Mills found guilty

In Pitt County, a jury today found Shelton Mills guilty of first degree murder. The sentencing hearing will begin soon. The state is seeking the death penalty.

Mills has an IQ of 71.

Press here.

Monday, May 23, 2011

NC Court of Appeals Criminal Decisions, May 17, 2011

State v. Burge.

Defendant's dogs were classified as "dangerous dogs" under N.C.G.S. 67-4.1. As such, he had to keep them confined indoors, in a securely locked pen, or in another structure designed to restrained dogs and he could not take them off his property unless they were leashed and muzzled.

One day, a man was walking down the street and was attacked by defendant's dogs.


Case made it's way to superior court and a jury found him guilty of "failing to confine a dangerous dog," under 67-4.2(a), a class three misdemeanor. Judge sentenced him for for "attack by a dangerous dog" under 67-4.3, a class one misdemeanor.

HELD: Judge erred in sentencing for attack, as the charge was for failing to confine--since the warrant did not have all the elements of attack in it. Remanded for re-sentencing.

State v. Hartley. Appeal of 1st degree murder, rape and sex offense convictions.

1st: No error in failing to suppress confession under Miranda. Defendant did not object to the admission of the confession at trial (even though there was an in limine motion on it). Under plain error analysis, no error. Issue is whether he was in custody. After the murders, defendant was located walking along the Highway. Police stopped and asked him if he was Kenneth Hartley and if he was OK. They told him three people had been injured in his home and asked if he knew anything about the situation, to which the defendant responded that he didn't. Officers conducted a Terry Frisk, located two bundles of money. They asked him to come to the command station (at a local fire department) for questioning. He agreed and rode, uncuffed, in the front seat of the police car. At the station, he was informed that he was not under arrest. At the end of the interview, the officer asked if there was anything else he'd like to say, and he said, "Yes, I did it" then went on to give a detailed confession. COA agrees that he was not in custody, under these facts.

2nd: No confrontation clause error where one pathologist reviewed the autopsy report of another and then testified, because the 2nd pathologist did their own technical review of the tests and formed her own opinion.

3rd: Swabs with defendant's DNA on them were properly authenticated. The swabs were with the non-testifying pathologist for 5 days before they were picked up by police. Because there was no reason to believe the item was in any way altered, the 5 days did not matter. Further, no confrontation problem where person who collected the evidence did not testify, because the officer's testimony of picking them up was good enough to authenticate and their significance was adequately explained by other testifying experts.

4th: No ex mero motu error in prosecutors closing argument. These were the statements:

  • "The defendant is trying to escape responsibility for the actions he did back on June 18, 2004. If that . . . isn't murder, I don't know what is"
  • "I know when to ask for the death penalty and when not to. This isn't the first case, it's the ten thousandth for me"
Defendant argues these were improper opinions of the prosecutor--statements of personal belief as to defendant's guilt. These did not go so far as to create plain error.

5th: No error in refusal of judge to give instruction a special instruction that, if he was found not guilty by reason of insanity, he would be committed. The court gave the pattern, rather than the defenses longer (but accurate) request.

State v. Jackson. Appeal of fleeing to elude arrest. A trooper engaged in a high speed chase with a motorcyclist, eventually finding him in a driveway-- a white male on a blue bike.

1) Sufficient evidence that motorcycle was driving recklessly, given excessive speeds and crossing of yellow lines to weave through traffic to escape.

2) No ineffective assistance for failing to object to evidence of the bike being entered (after a prior motion to suppress was denied--waiving appeal). First, the detective recognized the defendant's face from riding the bike, so their was significant evidence other than the blue bike of guilt. Second, defendant later confessed to being the driver.

State v. McCain. Appeal of possession with intent to manufacture cocaine and possession of oxycodone.

1st: Defendant was charged with trafficking cocaine (class G felony). Appeals arguing it was error to submit possession with intent to manufacture (class H felony) as a lesser included. Trafficking conviction holds if defendant possesses more than 28 g of cocaine. To prove possession with intent, the state must also show an intent to manufacture. As such, it is not a lesser included offense. Possession conviction vacated. However, simple possession of cocaine is a lesser included (which was also instructed upon). Remanded for re-sentencing on simple possession of cocaine (a class I felony).

2nd: Defendant challenged search warrant as not being supported by probable cause. Sufficient basis, where warrant based on (1) statements of reliable confidential informant of sales within 30 days of the affidavit from the residence, (2) anonymous tips, and (3) non-anonymous concerned citizen reports.

State v. Slaughter. Appeal of possession with intent to distribute marijuana and sentenced to supervised probation.

Police executed a warrant on a trailer with a full swat team, entering with a flash-bang. Inside, they found defendant, defendant's mother and three other men. The police found a big bag of little baggies of marijuana scattered around and stacks of $20 and $100 bills. They found scales, wrappers, and a total of $40,000.

1) Defendant challenges the proof of possession. To prove constructive possession, the state must show that the defendant has access to the drugs and that there are "sufficient incriminating circumstances" to prove he possessed it. Circumstances include: owning other items in the proximity, have exclusive access to where it was found, acting nervously in the presence of law enforcement, or residing in/regularly visiting where item was found, being found near contraband in plain view, or possessing a large amount of case. Later opinions focus on defendant's proximity and ability to control the place where the contraband is found.

Here, defendant clearly did not have exclusive control of the location. However, his close proximity to the contraband was adequate evidence. Defendant was found in a 150 sq. foot room surrounded by bags of marijuana and paraphernalia. This was adequate evidence. This is not a case in which any of the three individuals might have had control of a single baggie of marijuana. State presented sufficient evidence.

Judge Hunter dissents. "If the evidence is "sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed," even if "the suspicion aroused by the evidence is strong.""

"Here, the evidence presented at trial, even when considered in the light most favorable to the State, as is required in reviewing the denial of a motion to dismiss for insufficient evidence, tends to show only that defendant and two other individuals were detained by the tactical team and placed on the floor of a 10-by-15 foot bedroom in the back of the mobile home, which had a pervasive odor of marijuana."

State v. Twitty. Appeal of obtaining property by false pretense.

Defendant approached the congregation of the Mt. Olive Baptist Church with his alleged son and told this story: His wife died in a car accident and they were traveling to retrieve her possessions. They had no food and were almost out of case. Crying, he begged for money. The congregation obliged.

His story was not true.

The jury found him guilty of obtaining property by false pretense and Judge Gessner sentenced him to 151 to 191 months.

1st) No error to admit evidence under 404(b) of defendant telling this same story to other churches and receiving money. This was permissible as evidence of a common plan, as they acts were highly similar and occurred within a month of the charged conduct.

2nd) No plain error in DA calling defendant "a con man, a liar, and a parasite" in closing. All but "parasite" was accurate. The term parasite was unnecessary and unprofessional, but does not rise to the level of gross impropriety requiring ex mero motu intervention by the court.

3rd) Indictment wasn't fatally defective where it was alleged that he obtaining property by false pretenses from "The Congregation of Mt. Olive Baptist Church." Person in the statute includes a consortium or a corporation-- or a congregation.

4th) No speedy trial error as defendant's pro se motion was never adopted by counsel. A defendant cannot both represent themselves and have counsel. Unless counsel adopts the pro se motion, it is waived.

Wednesday, May 18, 2011

Life in Columbus County

Jury hung on sentencing in the trial of Danny Thomas in Columbus County. Life sentence imposed for quadruple murder.

Tuesday, May 17, 2011

Shelton Mills trial begins

On Monday, the State and Defense gave opening statements in the capital murder trial of Shelton Mills in Pitt County

Mills, who has a 71 IQ and is borderline mentally retarded, is charged with a 2007 double homicide.

Press here.

Court of Appeals Criminal Decisions, May 3, 2011


State v. Cobos. Appeal of convictions of conspiracy to traffic cocaine and PWISD cocaine. Defendant arrested with 83 grams of cocaine during a controlled buy.

First, The indictment for conspiracy was fatally defective, therefore the court lacked jurisdiction to try the defendant on that charge. The indictment read:

"The jurors for the State upon their oath present that on or about March 12, 2009, in Wake County, the defendant named above unlawfully, willfully and feloniously did conspire with Facundo Ausencio Marquez and Enoe Jaramillo Martinez to commit the felony of trafficking to deliver Cocaine, which is included in Schedule II of the North Carolina Controlled Substances Act. This act was done in violation of NCGS 90-95(h) of the North Carolina Controlled Substances Act."

An indictment must allege all the essential elements of the offense. An essential element of trafficking is 28 grams or more of cocaine. The failure of the indictment to include the element of 28 grams or more made it fatally defective, depriving the court of jurisdiction to hear that count. Conspiracy arrested. (The fact that it was later amended by consent does not save the indictment. You cannot amend, even by consent, a fatally defective charging document.)

Second, on possession count, no error in admitting an untested white powder that was found on the defendant's person, where detective testified that, based on his experience, he believed it was cocaine. Court declines to address arguments as there is no prejudice (because a huge bag was found in his car and was tested).

Third, hearsay claim not preserved as no motion to strike was made and not plain error.

Judge Steelman dissents on ground that it was error to allow lay witness to testify that the bag contained cocaine.

State v. Dibiase. Appeal of second degree murder conviction and sentence to 170 months.

New trial ordered due to courts failure to instruct on the lesser included offense of involuntary manslaughter. Defendant and the victim got in a fight at a party over Defendant's suggestion to the victim's girlfriend that they do some oxycontin together. During the fight, the victim sustained a two inch deep, 11 inch long laceration wound to his neck and died, that was likely caused by a broken beer bottle. Witnesses testified the event lasted only 10 seconds and there was only one blow--essentially that the defendant hit the victim with a beer bottle.

Defendant requested instruction on the lesser-included offense of involuntary manslaughter. A court must give such instruction if, considering the evidence in the light most favorable to the defendant, there is evidence sufficient to support the instruction. There was evidence that defendant hit the victim with a beer bottle (that broke and resulted in the laceration) without intent to kill, after being shoved or punched by the victim. This evidence would have permitted a jury to find the defendant guilty of involuntary manslaughter, which is the "unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury."

New trial.

State v. Hunt. Appeal of conviction for 2nd degree sex offense and crime against nature. Reversed and vacated.

Defendant, an adult, had oral sex with his daughter's 17 year old friend. The major issue in the case was whether or not the 17 year old was sufficiently mentally disabled to make this a sex offense.

The girl had a 61 IQ, but was completing high school and evidence was presented that it would be difficult but not impossible for her to get an associates degree from the community college. She was a 12th grader who made As and Bs, regularly baby-sat for others, paid her own bills, and was planning to get her license.

2nd degree sex offense rape occurs where the victim's consent is overborne by force or if the victim lacks actual ability to consent due to mental disability, mental incapacitation, or physically helplessness. Here, there was no evidence of force. The only issue was whether the victim lacked the ability to consent due to mental disability.

In this context, mental disability must be so severe that it "renders her substantially incapable of appraising the nature of her conduct, or resisting a sexual act or communicating unwillingness to submit to a sexual act." These are people that are so handicapped that they cannot, under any circumstance, consent to sex (like children). Mental retardation, alone, is not per se a mental disability that prevents consent to sex. Here, where evidence showed she baby-sat, made As, and was planning to attend community college, the state failed to meet its burden.

3rd, the crime against nature charge also must be dismissed. In the absence of proof of non-consent, there can be no crime against nature. The statute, which on it's face prohibits most sex acts other than vaginal intercourse, would be unconstitutional if applied to consensual acts.


Other Cases:

State v. Brown. Appeal of indecent liberties and first degree statutory rape. Sentenced for 20 years.

First, a book called "Family Letters" an erotic incest tract, was introduced to show defendant's motive/etc. under rule 404(b). Defendant argues that his possession of pornographic material is inadmissible under 404(b) as irrelevant and unduly prejudicial.

While general possession of pornography is not normally admissible under 404(b), this type was because it described incest and was relevant to motive (rape of defendant's daughter).

Second, no error in ordering lifetime enrollment in satellite-based monitoring (SBM). SBM is automatic for aggravated offenses--offenses that by their element either (1) involve rape by force or (2) involve penetration with a victim less than 12.

Here, statutory rape of a child under 13 necessarily involves force. See State v. Clark.

State v. Goode. George Goode was sentenced to death in 1993 for two murders and then sentenced to an additional 40 years for robbery.

On October 21, 2009, the federal court issued a writ of habeas corpus vacating the death sentences and ordering that NC sentence him to life, unless a sentencing hearing is held within 180 days.

The state decided not to proceed capitally again and a sentencing judge resentenced him to life. Defendant appeals, arguing the trial court erred in imposing consecutive, rather than concurrent sentences.

Statutorily, after successful appeal, the superior court cannot impose a new sentence "which is more severe" than the prior sentence. Defendant argues that, because the death sentences were not set to run consecutively, the court could not impose consecutive life sentences.

Held: two concurrent death sentences are more severe than two consecutive life sentences. Court was allowed, in its discretion, to boxcar these life sentences. (Note: This only matters because in 1993, life meant eligible for parole in 25 years. Now, 1st degree murder is punishable only by death or life without possibility of parole).

State v. Green. Appeal of indecent liberties conviction. Defendant pleaded guilty and was sentenced to 25-30 months. At the conclusion of sentencing, the court found he required the "highest possible level of supervision and monitoring" and he was ordered to enroll in SBM for 5 years.

Defendant challenges court finding of fact that he required the "highest possible level of supervision and monitoring" (a required finding for non-aggravated offenses), base on DOC risk assessment that he was a "moderate-low risk." Here, there were additional facts-- the victim was too young to speak, prior acts of domestic violence, and defendant's failure to complete sex offender treatment. Given these additional finding, court did not abuse its discretion.

State v. Howell. Appeal by state of dismissal due to speedy trial.

Defendant moved, from prison, pro se (although he was represented by counsel), for a speedy trial. He was indicted on April 13, 2009. On May 6, 2009, he requested a speedy trial. On November 9, 2009, the trial judge granted his pro se motion and dismissed the charges.

First, state argues the court should not have considered the pro se motion, since the defendant was represented by counsel. This was not error because defendant's counsel essentially adopted the motion as his own by arguing it. Further, while case law says it is not error to ignore pro se motions made by the represented, it is not error to rule on them.

Second, remanded for additional findings to determine the grounds for ruling dismissing the charges.

State v. Leyshon. Pro se appeal of conviction for driving while license revoked (DWLR).

First: On July 14, 2008, Defendant refused counsel, then the judge ordered counsel appointed. Defendant argues this violated his right to proceed without counsel. While the defendant did say (about counsel) "I refuse it publicly on the record." He previously gave some vague answers and refused to answer some questions and refused to sign the waiver of counsel. As such, there was not an unequivocal assertion of the right to proceed pro se. No error in appointing counsel.

Later, the trial judge allowed his case to proceed without appointed counsel. Although there was no unequivocal waiver, defendant forfeited his right to counsel by his behavior. “Any willful actions on the part of the defendant that result in the absence of defense counsel constitutes a forfeiture of the right to counsel.” Defendant refused to sign a waiver form, refused to answer questions about whether he wanted an attorney, etc. These actions obstructed and delayed the process, causing a forfeiture of the right to counsel. No error in proceeding without counsel.

State v. Stevenson. Appeal of first degree murder conviction (and kidnapping, robbery and conspiracy).

Defendant and a friend robbed a drug dealer. The friend shot and killed the dealer.

First, no error in admitting evidence of guns found in Defendant's home during search warrant. The guns were not used in the robbery. Defendant argues they were unduly prejudicial under Rule 403. No objection at trial. Ruled not plain error--no different outcome would have resulted without this evidence, given his written confession.

Second, no error in admitting picture of Defendant with a firearm, taken at a different time than the robbery, as it was relevant to means. The fact he was making a gang sign did not make it unduly prejudicial, given the evidentiary value of the picture showing access to a silver gun.

Third, during deliberations, the jury asked for a transcript of a witnesses testimony. Under 15A-1233, a Judge has the discretion to read back the testimony of witnesses or allow examination of evidence. No abuse of discretion in giving jury the defendant's statement and photographs, but denying the transcript of a (defense friendly) witness's testimony. No explanation is necessary and a statement that, in his discretion, the judge was denying the request, was enough.

Monday, May 16, 2011

Death Penalty Trial to Begin in Fayetteville

On Monday, the death penalty trial of Stanton Mark Moretti, Jr. is set to begin.

Moretti is charged with using his car to hit a man who was assaulting his wife. This one takes the cake for unbelievable death penalty cases.

This is the worst of the worst? Tough week for prosecutors, trying to the kill the a mentally feeble man in Pitt and a guy protecting his wife in Cumberland.

Saturday, May 14, 2011

Jury to Judge: We're Deadlocked

At close of business Friday, jurors in the capital murder trial of Danny Thomas in Columbus County told the judge they were hopelessly deadlocked.

The judge denied a defense request to impose a life sentence, then continued the sentencing deliberations until today.

The jurors previously convicted Mr. Thomas of four counts of first degree murder.

If a juror is unable to render a verdict, the judge must sentence Thomas to life without parole.

No word on the status from todays deliberations.

Friday, May 13, 2011

Trial of Mentally Challenged Man in Jury Selection

In Pitt County, prosecutors are seeking death against Shelton Mills for a 2007 double homicide in Pitt County.

Mills attorneys had previously requested that the court not allow the state to seek death, as Mr. Mills had a 71 IQ and serious cognitive deficiencies.

The case is in jury selection. Eight jurors have been seated.

Story here.

Thursday, May 5, 2011

Cooper Guilty

Jury just returned verdict. Guilty of 1st degree murder.

Jury Deliberating in Brad Cooper Case

Jury is now starting day 3 (the first day was only 40 minutes of deliberations) of deliberating on the guilt or innocence of Brad Cooper.

The state's case was underwhelming, consisting largely of speculation and innuendo. The state lacks a clear theory of the case and was embarrassed a few times (e.g. claiming that porcelain ducks that were "missing" from the kitchen must have been broken during a death struggle, only to have the defense produce them from storage where they were placed weeks before).

Nonetheless, juries are notorious for setting low evidentiary standards in murder cases and Judge Gessner kept important defense evidence from the jury.

Watch the closing here and decide for yourself.

Monday, May 2, 2011

Purdue signs Unborn Victims of Violence Act

On Friday, the Gov signed a bill that makes it murder if, during the course of an assault, a fetus is destroyed.

The Act makes it 1st degree murder to:
(1) Willfully and maliciously commits an act with the intent to cause the death of the unborn child; or
(2) Causes the death of the unborn child in perpetration or attempt"

2nd degree murder to:
(3) Commits an act causing the death of the unborn child that is inherently dangerous to human life and is done so recklessly and wantonly that it reflects disregard of life.

Voluntary manslaughter to:
A person is guilty of the separate offense of voluntary manslaughter of an unborn child if the person unlawfully causes the death of an unborn child by an act that would be voluntary manslaughter if it resulted in the death of the mother.

Involuntary manslaughter to:
A person is guilty of the separate offense of involuntary manslaughter of an unborn child if the person unlawfully causes the death of an unborn child by an act that would be involuntary manslaughter if it resulted in the death of the mother.

A person is guilty of the separate offense of assault inflicting serious bodily injury on an unborn child if the person commits a battery on the mother of the unborn child and the child is subsequently born alive and suffered serious bodily harm as a result of the battery.

Misdemeanor Battery (A1) to:
A person is guilty of the separate offense of battery on an unborn child if the person commits a battery on a pregnant woman. This offense is a lesser-included offense of G.S. 14-23.5.

: The act does not require proof of knowledge that the woman was pregnant.

This act is controversial, although mostly as an attempt to create a statutory concept of pre-natal life to bolster the anti-choice cause before courts. Lots of vagueness in this law as well, that will surely lead to significant cases of overcharging...but what else is new.

Read the law here.