Thursday, June 30, 2011

NC Court of Appeals, Criminal Decisions (6/21/2011)

Reversals.

State v. Burke.
Appeal of drug possession and concealed weapon conviction.

Defendant stopped when officer notes that his 30-day tag appears to be different (different numbers) than other 30-day tags he's seen and the officer believes it is fictitious. When the defendant went into his glove box to get his registration, the officer saw a handgun. Defendant was arrested for carrying a concealed weapon. Then the defendant confessed to having ecstasy and cocaine.

1) Held stop was not valid. The officer lacked reasonable articulable suspicion for the stop. Here, there was no evidence that the 30-day tag was old, worn or concealed. The officer simply believed the numbers were "too low." This was inadequate reasonable suspicion for the stop. (Note: The tag was valid.)

Evidence should have been suppressed. Reversed and vacated.

Martin dissents.

State v. Martinez. Appeal of indecent liberties and statutory rape convictions.

At trial a social worker testified that she had investigated the allegation and "substantiated it", through the child welfare process. This is an inappropriate comment on witness credibility--that an expert reviewed the situation and decided the victim was being "truthful." Cases where an expert testifies about physical evidence consistent with the victim's story are OK, but finding that, based on an investigation, that the incident occurred according to the victim's version is not (here there was no physical evidence consistent with sex abuse). Court found that this was prejudicial
plain error (granting relief even though there was no objection at trial).

New Trial.

Second, trial court erred in failing to disclose material exculpatory evidence contained in documents that were reviewed in camera. Ordered the trial judge to review the material de novo and provide to the defendant.

State v. Whetstone. Appeal of convictions for assault with a deadly weapon inflicting serious injury (AWDWISI).

Facts of the case were that defendant and the victim, a Marine trained in hand-to-hand combat, got into a fight after a night of drinking and defendant stabbed the Marine. D

Judge gave a self-defense instruction, but not the deadly force self-defense instruction (i.e. that the defendant could use deadly force if he reasonably believed deadly force was or was about to be used upon him) (Pattern instruction 308.40 versus 308.45).

One is entitled to the deadly force instruction if there is any evidence, in light most favorable to the defendant, that deadly force was being used on defendant. Given the victim's Marine Corp training, general status as a bad ass, and testimony of the defendant that he was beating the crap out of the defendant, there was such evidence and the court erred in failing to instruct on deadly force.

New trial.



Other Cases.

State v. Carter.
Appeal of second degree murder conviction.

A fight broke out at the Red Rooster Nightclub in Winston-Salem around 2:00pm. Someone threw a chair. The crowd numbered 400-500 people. At least 30 separate fights broke out in the parking lot. Defendant got hit in the face and was bleeding. Deputies, who were working off-duty security, started spraying pepper spray. The defendant went to his car and got a 9mm handgun. Yelled "fuck it" and fired several shots "toward the crowd" (in the air). One of the deputies was hit and killed. Defendant was tried for 1st degree murder, and the jury returned 2nd.

1st: No error in denying motion to suppress confession. Defendant was asked to come to the police station and he agreed. He road with police, after informing them he had trouble with his car. During the interview at the police station--where defendant was not given any Miranda warnings, he confessed to firing his gun straight up in the air. No Miranda problem as defendant was not in custody at the time of the confession. He voluntarily went to the station and was free to leave.

2nd: No Batson error. During jury selection, state accepted 11 white jurors, while striking 2 blacks. The trial court made the DA explain his decision, and he responded that one juror had a sister in jail who felt she was mistreated, had poor eye contact and a low voice and another because her son had been sentenced to 35 years for attempted murder. Another white juror was accepted whose father was in prison, two were accepted that had criminal records, and several accepted that had "run-ins" with the police.

Here, the state rebutted the prima facie showing by articulating legitimate race neutral reasons and the whites were distinguishable from the blacks.

3rd: Even though defendant had no intent to kill, firing in the direction of the crowd was sufficient malice for 2nd degree murder.

4th: No error in submitting aggravating factor that a deputy was the victim. No requirement to show that defendant knew the victim was an officer, as long as the officer was engaged in police duties.

State v. Edmonds.
Appeal of statutory rape and indecent liberties conviction.

Defendant convicted of rape/indecent liberties with a 15 year old. State's case relied almost exclusively on the victim's testimony and some torn clothing (DNA evidence was inconcl
usive: defendant "could not be excluded...")

First, defendant argues he was unconstitutionally limited in his cross of the victim. No constitutional arguments were made at trial, thus they are waived. No error under 412--the Rape Shield Law. Prior sexual behavior of a victim in a rape case cannot come in unless prior acts are between the defendant and the victim, if admitted to show the acts were not committed by the defendant, or the prior acts are so distinctive and resembling the defendant's version that they prove consent, or offered to show (with psychiatrist testimony) that it was invented. The victim's prior promiscuity was not relevant to any of these and not otherwise admissible. No error in excluding this.

Second, no error in limiting defendant's closing and not letting him argue that someone else, possibly his nephew, committed the acts. The judge said he could say it "wasn't him" but not it was someone else. Because the record doesn't clearly show any particular argument he was limited in, the argument is dismissed.

State v. Herrin.
Appeal of conviction for "felonious malicious use of an explosive or incendiary device."

This crime is a new one on me. Only in Gaston County.

Facts in this one are worth a read. Basically, defendant
(right) was raising hell in a trailer park (physically taking bikes from people, choking people, hitting people's dogs with a shovel.) Eventually, he says, "i'm gonna burn ya'll up" Cuts a bud lite can in half, puts gas in it, and douses one of the neighbors, then lights him on fire.

Defendant was indicted for maliciously injuring this neighbor with an incendiary device, NCGS 14-49(a)--a Class D Felony.


First, the court instructed that gasoline was an "incendiary material." Defendant argues that this was an issue for the jury and the judge erred in instructing so. Overruled, since there was no plain error raised on appeal and no objection at trial.

Second, no error by having the judge improperly comment on the evidence. Judge laughed, in open court, when a witness testified that the defendant "ran like a bitch all the way, way down past his house." Ruled no prejudice. While a judge cannot express an opinion on evidence in front of the jury, not every "indiscreet and improper remark by a trial judge" is so harmful as to require a new trial. Only if the jury may reasonably infer that the judge intimated an opinion on a factual issue or credibility is there prejudice. This was simply a laugh a funny comment--and the judge explained that he was just laughing "at the terminology...I haven't heard that term utilized."


State v. Jones.
Appeal of convictions of 2 co-defendants (Tina and Jerry Jones) for "causing their daughter to fail to attend school."

Held:
Sufficient evidence. Elements: (1) Defendant is a parent or guardian; (2) of a school aged child enrolled in public school; (3) that the principal notified the parents of at least 3 unexcused absences, (4) after not more than 6 unexcused absence, notified that may be in violation; (5) that after notification the school counselor worked with the parents to analyze and fix the problem; and (6) the child nonetheless got more than 10 unexcused absences.

Defendant argues that (4) was not met, because the child already had 8 absences when they sent the letter. Held that the purpose of 4 was only to notify that there may be a violation and, if it occurs after the 6th absence, no harm, no foul.

Defendant argues that (5) was not met, because there were already 10 absences when a the first sit down conference occurred with the school counselor. As long as there was good faith effort made to meet with the parent and analyze the problems, #5 is met, even if it occurs after the 10th absence. Both the 3-day and the 6-day letter said "Come meet with us." That's enough for good faith. (Note: The child ultimately got 21 unexcused absences, which, while not discussed in the argument section, had to be a big push factor in this case. I mean, if after the 10-day conference, there were no more absences, these legal arguments might have had more legs).


State v. Norton. Defendant charged with failing to remain at the scene of an accident involving property damage, assault with a deadly weapon on a government official, felony driving to elude arrest, possession of drug paraphernalia, reckless driving, assault on a government official, resisting a public officer, speeding, driving while impaired, and attempted robbery.

Facts: Defendant seen breaking windows a vehicle in a motel parking lot. It was his car. He got inside and began driving on the wrong side of the road. A high speed chase ensued (70 in a 35). He got away. Twice.

Later, they found him at the motel again "doing donuts in the middle of the road and then driving into oncoming traffic." He cursed and flipped off law enforcement, yelling "come on." Another chase pursued, where defendant ran red lights, drove through a metal gate onto a golf course and ran several motorists off the road. He got away again. Sometime later, he crashed into another car, then drove away again.

Then, later, he got pulled doing 100 miles an hour, passing cars in the emergency lane. At one point, he was seen driving with the door open and his limbs hanging out. He wrecked, then fled on foot. He found the cops and was eventually tased. His BAC was .03 (aka--not drunk) and there was cocaine in his blood. All in all, a pretty sweet episode of "Cops"

The jury returned guilty verdicts on every thing except RPO and assault on an officer (not guilty) and hung on assault on an officer with a deadly weapon and one count of failing to remain at the scene. He was sentenced to about 4 years.

1st) Sufficient evidence for DWI. DWI if "took a sufficient quantity of [drugs/alcohol] to lose normal control of bodily or mental faculties." Court said, on these facts, with the cocaine in the blood and a .03, that's enough.

2nd) No error in court refusing to allow a witness who was tendered as an "expert forensic toxicologist" to testify about the effects of cocaine in the body. Any error, if any, was harmless due to overwhelming evidence of impairment.


State v. Oates.
State appealed superior court suppression of evidence.

State gave written notice of appeal months before the judge filed the written order. The rules require that notice be given 14 days after entry of judgment (or orally at trial). Here, the judgment was the written order.

Because the state didn't enter oral notice and didn't file its written notice within 14 days after the entry of judgment (rather, it filed it months before entry of judgment), the appeal was not perfected. Dismissed.


State v. Speight.
Appeal of conviction for first degree burglary, robbery with a dangerous weapon (RWDW), first degree sex offense, and second degree kidnapping. Sentenced to approximately 52 years in prison.

Defendant convicted for home-invasion sex assault. Convicted based on eye-witness ID and fingerprints.

1) No error under 404(b) in state submitting defendant's statement, upon arrest, that "Man, I'm a b&e guy." The fact that he was a "b&e" guy, was relevant to the charge of burglary.

2) Indictment for burglary not fatally deficient. Indictment deficient if it fails to state an essential element of an offense. Here, the predicate felony for burglary listed was the intent to commit "unlawful sexual acts." A breaking and entering must be committed with the intent to commit a felony inside to be a burglar. This was sufficient to give defendant adequate notice.

3) Substantial evidence for RWDW. Must show defendant took property by using/threatening to use force with a dangerous weapon. Defendant broke into the victims house, put a knife to her throat, and negotiated with her about whether she had more money. This is substantial evidence of a RWDW.

4) Defendant was not entitled to instruction on lesser included offense of common law robbery. The difference between common law robbery and RWDW is the use of a dangerous weapon. No evidence here that defendant committed the crime, but without use of a dangerous weapon.

5) Defendant not entitled to instruction on the lesser included offense of 2nd degree sex offense. The difference between 1st and 2nd degree sex offense is the use of a deadly weapon. Here, there was no evidence that defendant committed the sexual offense, but without use of a dangerous weapon.


State v. Wright.
Appeal of eight convictions arising out a shooting incident at a barbershop in Clinton.

Defendant fired five shots into a barbershop from a car. One man was hit, but lived. He was convicted of
  1. Attempted murder on one by-stander
  2. Attempted murder of the guy he shot
  3. Assault with a deadly weapon with intent to kill inflicting serious injury on the guy he shot;
  4. Two counts of discharging a firearm into occupied property inflicting serious injury
  5. Two counts of discharging a firearm into occupied property
  6. Discharging a firearm within city limits
He was sentenced for with three of the sentences running consecutively, for a total of 36 years.

1) Defendant argues that it violated double jeopardy to charge him with multiple crimes for the same transgression (firing into the barber shop). Defendant argues he can only be convicted of 1 count of attempted murder and 1 count of AWDWIKISI. However, in a multiple gunshots fired situation, you can only be charged with one assault and one murder, per victim. Since there were two victims, no problem with the two charges.

2) No error in judge holding part of the sentencing proceeding (a pre-trial conference in chambers) outside of the defendant's presence. Under the NC Constitution, Article I, Section 23, the accused has the right to be present at "every stage of his trial." While this was error, it was harmless.

SBI Crime Statistics Released

The SBI released its 2010 Annual Report. The crime rate is now at an all-time low.

The complete report is here. Some interesting things are noted below. Despite Representative Skip Stam's constant statements that the Death Penalty is a "deterrent" to crime, the data really doesn't show that.

Despite Greater and Greater Disuse of the Death Penalty, The Murder Rate Continues Decline:

Since 1993, death sentences have declined nearly every year (in 1993, there were 32 death sentences meted out in the state; in 2010, only 4).

Meanwhile, the murder rate in the early 90s sat around 12 murders per 100,000, now its down to 5.1. The entire trend--showing reduced death sentencing and lower murder rate. See chart below:

Tuesday, June 28, 2011

8-4 Was For Acquittal in Young

WRAL is reporting that the 8-4 vote was for acquittal in the Jason Young case. This makes re-trial less likely, as the state may walk away from the case or offer a plea too good for Mr. Young to pass up.

So, this begs the question: What was different between this case and the Brad Cooper case. Both had pretty weak state evidence (in my humble opinion, the evidence against Mr. Young was stronger than against Mr. Cooper). What made the difference? Did Mr. Young benefit from the reactions to the Brad Cooper case? Or was it the simple fact that Mr. Young took the stand and declared, "I didn't do it?"

Hard to say, but juries, no matter how many times they are told not to, sometime hold silence against defendant. I've heard lots of people say that, "If I was wrongfully accused, you couldn't keep me off the stand."

Where this one ends up will be interesting.

Monday, June 27, 2011

Hung Jury

Jury sends out note. They are now at 8-4 and feel that they are hopelessly deadlocked.

Judge Stephens (left) just said it looked like they are "not going to be able to make a decision." Looks like this one is over.

Hung jury.

Young Jury Hung?

The Jason Young jury just told Judge Stephens that they were "unmovably hung." If the jury cannot reach a verdict, the judge must declare a mistrial and the state can decide whether to proceed or not on a re-trial.

Judge Stephens may give (or may already have given) the NC version of the Allen charge, telling the jury to keep trying. This is crunch time. Usually in these situations, a hung jury or a verdict comes back pretty soon.

Live feed here.

UPDATE: N&O reporting the split is 6 to 6.

Thursday, June 23, 2011

Wednesday, June 22, 2011

Prosecutor Eric Bellas Charged with DWI

The lead prosecutor in the Zahra Baker case, Eric Bellas (right), was charged with DWI while attending the NC Conference of DA's annual conference on the North Carolina coast.

DWI's have become the punching bag of the legislature, as harsher and harsher penalties are added every year, without thought to the reality of widespread alcohol use in our society. A DWI has become a career ender for many. Hopefully, this will blow over for Mr. Bellas and he can do what's necessary to deal with his poor alcohol choices, without having his whole career and life destroyed as so many have before him.

Jason Young: "I didn't do it"

Today, Jason Young is testifying in Raleigh. He is testifying that he did not kill his wife, Michelle Young.

He explained state's evidence of a propped door at his hotel and camera's showing him leaving the building that night--allegedly to drive home to kill his wife as a need to grab a forgotten power cord out of his car.

The state's case largely rests on circumstantial evidence--cameras showing him leaving the hotel and a gas station clerk between the hotel and home who believes he stopped in late that night for gas.

The state rested earlier this week.

Tuesday, June 21, 2011

Mead Defense: Spelock did it

Michael Mead is on trial for his life in Charlotte. His attorney, Lisa Dubs, has poked holes in the state's case by pointing out that the police looked very hard at another man.

Mead is charged with killing his pregnant girlfriend, Lucy Johnson. At the time, she was involved in a serious custody battle with her ex, Jim Spelock. The police investigated him just as hard as Mead and the defense asserts there is no reason to be certain it was mead and not Spelock.

As this one has so-far unfolded, the case seems to lack strong evidence against Mead. We'll keep you up to date.

Read about it here.

Friday, June 17, 2011

Jason Young: A Sordid Trial

Well, the Wake County DA's are at it again--turning their courtroom into a soap opera.

Yesterday, they called two more women to discuss their relationships with Mr. Young.

First, Genevieve Cargol (right), Mr. Young's ex-fiancee described their relationship, including an incident where he "threw her from bed to bed in a hotel room" to show that he is violent towards women... of course, this was in 1999, so seems of limited relevance.

Then, the state called Carol Ann Sowerby, another woman he had an affair with about a month before the killing.

Squeezed into all this was DNA evidence, Wednesday, found on 2 cigarette butts showing that two other men were present at the crime scene, as well as a hair that didn't match anyone. Also, some DNA on a jewelry box that was robbed during the crime that didn't match Young.

I think they also put on some footprint evidence, which is generally non-sense and shouldn't (but regularly is) even be allowed in evidence.

This one's starting to smell a little fishy... I guess they'll probably keep calling ex-girlfriends. Worked before...

Racial Justice Repeal Passes House

Yesterday, the NC House of Representatives passed a bill to repeal the racial justice act, 64-52. The vote was on straight party lines. Four Republicans either didn't vote or were absent.

The act is a two-year old protection against discrimination in death penalty sentencing.

This one's a real low point for the House, which has been perceived as being lackluster in it's care for how its actions affect the disaffected, the poor, and minorities in NC (Voter ID, medicaid cuts, education cuts, limiting unsecured bonds, etc). This repeal is one of the most direct assaults and feels reminiscent of the early 1960s fights--fortunately without the overtly racist rhetoric (but not without racist overtones).

SB 9 now heads back to the Senate for a concurrence vote. However, it was withdrawn from today's calendar and re-referred to committee. The way it got to the Senate was that the Senate passed a different bill, that was then gutted in the house and returned for concurrence vote (depriving the ability of the Senate to discuss it in a deliberative manner in committee). Apparently, the Senate is deciding that's a little too rough-shod, even for this assembly.

So it dies...for now.

Read press here.

Thursday, June 16, 2011

NC Supreme Court Criminal Decisions, June 16, 2011

Supreme Court issued two criminal decisions today:

State v. Phillips. Appeal of jury verdicts for four counts of first degree murder, attempted murder, 1st degree kidnapping, arson and four sentences of death.

Defendant had been drinking and using drugs and was distraught from the news that his brother had been shot. He and two other co-defendants went to the home of Eddie Ryals at a trailer to try and get more drugs. After being in the trailer for 30 minutes, defendant pulled out a gun and shot Ryals. He later shot and stabbed Ryals and four other people, including Amanda Cooke who lived to testify against him. Afterwards, he set the trailer on fire.

Defendant ran a voluntary intoxication defense at trial. This defense was significantly undermined by a jail snitch, Frederick Brown, who testified that defendant was the ringleader and "these crackers think I'm crazy, so I'm just playing it off to get life and not death."

1) Court did not err in refusing to suppress defendant's confession. Defendant argued that his confession, given while in an intoxicated state, was not voluntary due to his intoxication. He also argued that it violated the 5th/6th Amendment, as his attorney was at the jail and denied access to him during the confession.

Because defendant had waived his Miranda 5th amendment right to a lawyer and his 6th hadn't attached yet, no error in the officers denying his "provisional" counsel access to him at the jail. Further, the court made adequate findings that defendant's waiver was voluntary--that defendant was not so impaired as to lack ability to voluntarily waive.

2) Defendant argues he was deprived conflict-free counsel, as his attorney--Bruce Cunningham--was a witness to his condition at the time of questioning and spoke with a Chief McDonald who stated that defendant was "stoned out of his mind" The Chief later said he didn't remember saying that, but he didn't deny it. Defendant argues that, by making himself a witness to the case, his attorney should have withdrawn from the case. Mr. Cunningham initially moved to withdraw, but then said, "“in light of [Chief] McDonald’s testimony at the previous hearing that he didn’t deny saying certain things,” he would not need to withdraw and on 6 July 2007."

First, the standard for IAC is "deficient performance" that prejudices the defense. Where the IAC is based on a conflict from multiple representation, this raises questions of loyalty and does not require a showing of prejudice, only that it impacted performance. Defendant argues that this conflict--an attorney making himself a witness--also raises questions of loyalty and that the court had a duty to initiate an inquiry.

Held: That in this situation, the prejudice standard (under Strickland for IAC) rather than the impacted performance standard (under Sullivan for conflicts) is the appropriate standard here. Further, the court decided not to rule on the issue of "deficient performance", but ruled instead that the conflict did not result in prejudice to the defendant (i.e. but for the conflict and failure of Cunningham to withdraw and testify, the result would not have been different).

3) Prosecution did not knowingly elicit or fail to correct false testimony from Amanda Cooke. In prosecutor's notes, witness Cooke told the stated that defendant kept saying he had nothing to live for due to his brother's death. On her direct, she said he said his brother had been shot and, for this reason, he needed money. Defendant argues that the state thus put on a theory that the killing was for money, rather than due to irrational distress. While the notes and the testimony conflict, it is not apparent that Cooke testified falsely and she was questioned on these inconsistencies, so the jury could evaluate her testimony.

4) No plain error in the court failing to instruct that prior police statements were admissible as substantive evidence as statements of party-opponennts. Police officers made prior statements about defendant's mental state that conflicted with the presentation at trial. (i.e. Crazy/high versus a little nervious). Court doesn't address whether officer statements are party-admissions, ruling only that there was no prejudice.

5) No error in failure to defense to object to statements of Cooke that defendant "knew what he was doing. He had planned it out..." These were opinions rationally based on her perceptions. No error.

6) Sufficient evidence of kidnapping charge, even though state did not put on specific evidence of lack of parental consent (Cooke was 15). Given that she was shot and repeatedly stabbed, it was fair for jury to presume using circumstantial evidence that there was no parental consent.

7) No error for court's failure to intervene ex mero motu during closing. Defense, during voir dire, told all jurors that Defendant had committed the underlying acts--that this wasn't a whodunit. The state, in closing, said, "Now it was said during jury selection that the defendant admits that he’s guilty of what he’s charged with." While this overstated the defense's concession, the defense did make misstatements during jury selection that could have cause the state's mis-perception. While the statement was legally incorrect, it was not prejudicial.

Second, no error in state commenting on fact mother didn't testify. Nothing wrong with state pointing out defense failure to call available witnesses. This is not a comment on silence.

Ruled other comments not prejudicial as well.

8) No invited error / IAC for defense submission of two ridiculous mitigators (no significant prior history and minor participation (in one of the murders)). The state ridiculed these in its closing.

--Significant History: here, defendant had multiple felony convictions for sale of drugs, larceny, and breaking and entering. Judge cannot submit unless there is it finds a "rational jury" could find that factor. Given that the convictions were remote and did not involve violence, there was adequate evidence to submit.

-- Minor participant. Must show that defendant was an accomplice with relatively minor participation. For the victim at issue, defendant shot him in the neck, but then he died from stab wounds of a co-defendant. The shot was not fatal. Court erred in submitting this one. Not sufficient evidence to support. However, this submission is harmless error.

9) Proportional.

State v. Biber. Appeal from COA. COA found that there was no evidence of defendant's constructive possession of cocaine and reversed conviction, where defendant was one of 3-4 people in a hotel room and the crack was not found in the defendant's belongings.

Held: COA applied the incorrect evidentiary standard (ruling on it like a motion to dismiss, rather than on the issue of probable cause). Reversed.

Once again, the COA giveth, the SC taketh away...

Wednesday, June 15, 2011

Juror Excused in Jason Young Case

Today, Judge Stephens excused a juror from the Jason Young case. The juror had difficulty getting to court from Fuquay-Varina, as she had no car. Judge Stephens decided against having a deputy pick her up for court every day, since the defense has challenged the quality of work done by the Sheriff's office and there was too much potential for problems.

Tuesday, June 14, 2011

Jason Young Update: Affair

Michelle Money (pictured) testified in the Jason Young case today in Wake County. She testified that she and Young had an affair, starting about a month before the state alleges Mr. Young killed his wife.

Money and Mr. Young's deceased wife, Michelle Young, were sorority sisters at N.C. State.

Prosecutors Hid Evidence in Michael Mead Case

Defendant Michael Mead is charged with the murder of his pregnant fiancee.

Mead's lawyers today argued that the victim's ex-husband, James Spelock, was in the middle of custody fight with her and had opportunity to kill her. The state failed to provide to the defense evidence of a search conducted of Spelock's house. The defense argued that the case should be declared non-capital in light of the state's failure to turn this over. Not so, said Judge Bridges.

Opening statements are under way.

Good TV story here.

Sunday, June 12, 2011

Evidence Mounts in Jason Young Trial

In Wake County, the 1st degree (non-capital) murder trial of Jason Young, for the killing of his wife, Michelle Young, continues.

The state's theory, in this case, is that Young left a business trip, drove home over night, killed his wife, and then returned to his business trip hotel--all to create an alibi.

In it's first week, the prosecution put on two pieces of evidence: (1) evidence an employee noticed that a hotel camera in Hillsville, Va was unplugged and a side door was propped open with a rock around 3:30am. Young had checked in that night at 11:00pm. and (2) evidence that Mr. Young stopped at a gas station in King, NC around 5:30am that night. The clerk, Gracie Dahms (pictured) remembered him because he cussed her out when she made him come inside to pay.

According to google (map below), the total trip (from Hillsville to Raleigh) would take about 3 hours. From Hillsville to King it's about an hour drive. With that timeline, it only really makes since that he would be coming back and stopping for gas, rather than stopping on the way there. But I don't know how narrow the time of death window is.


View Larger Map

Saturday, June 11, 2011

Juror in Brad Cooper Case Speaks Out

Andy Gilbert, the foreman of the Brad Cooper jury, spoke out recently, saying that the jury drove it's decision based on facts and that the crucial evidence for their verdict was FBI testimony about searches conducted on Mr. Cooper's computer.

Judge Gessner's decision to prevent the defense from presenting evidence that Cooper's computer had been tampered with and that these searches were created well after the crime was committed appears even more critical.

According to WRAL, "Defense attorneys believe their chance to appeal the conviction is good, saying jurors were never allowed to see evidence that proved Brad Cooper's laptop was tampered with." It will be months before the Court of Appeals hears this case, but one thing (at least should be) certain--they can't harmless error that one.

Brad Cooper (pictured) is currently housed at Central Prison in Raleigh, serving a sentence of life without the possibility of parole.

Read the WRAL article here.

Jury Selected in Michael Mead Capital Murder Trial

In Charlotte, 12 jurors have been selected in the Michael Mead case. Attorneys will resume Monday selecting the 3 alternates.

Assistant District Attorney Bill Stevens has taken over the state's case, along with Eddie Meaks, replacing Bob Forbes. Last week, Forbes asked for a continuance due to health issues. Judge Forrest Bridges denied that request.

Judge Bridges (pictured) gained notoriety last year in setting aside the death penalty in the case of Demetrius Montgomery, due to police officers intentionally destroying significant evidence. He is also a commissioner on the North Carolina Innocence Commission.

Mead is charged with first degree murder and rape of a pregnant woman in Gaston County. After the victim was killed, her home was set on fire. If convicted, Mead could face the death penalty.

Wednesday, June 8, 2011

NC Court of Appeals Criminal Decisions, June 7, 2011

Reversals.

State v. Adams. Appeal of judgment by two co-defendant (Kenneth Adams and Michael Sowell) for two counts each of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), entered by Judge Carl Fox in Rowan County.

Two men were shot multiple times in a drug-related shooting. Defendant testified that one of the the two victims, Johnnie Thompson, fired a shotgun at them first and they only returned fire in self defense.

During the charge, the judge charged the jury on both defendants at the same time.

"The defendants have been charged with attempted first degree murder. For you to find the defendants guilty of this offense, the State must prove two things beyond a reasonable doubt: First, that each of the defendants intended to commit first degree murder. . . ."

Judge Fox similarly charged the jury on the issue of self-defense: "The defendants would not be guilty of attempted first degree murder on the grounds of self—defense if..."

The effect of this was for the jury to consider the defendants' guilt collectively, rather than individually. This prejudicially affected the outcome of the trial.

New trial.

State v. Hayden. Appeal of conviction for first degree murder, entered by Judge Kenneth Crow in Onslow County.

In 1972, the body of William Miller was found on the side of the road, with his car nearby, running. Miller had been shot in the head.

Held: insufficient evidence for a conviction of 1st degree murder. The state only presented circumstantial evidence of the defendant's identity as the perpetrator. Where the state's case only casts suspicion on the defendant, it must be dismissed.

The evidence presented here was:
  • Defendant had a motive to kill the victim, as the victim's wife had moved in with him.
  • Defendant had told people that, if the victim did anything to him, he'd "get him."
  • Defendant and the victim had a fight a few days before the incident, where the victim beat up the defendant and the defendant threatened to kill him.
  • Evidence related to defendant and victim's wife making arguably fraudulent charges with the victim's credit cards.
  • On the night of the incident, the victim's wife told Defendant she was thinking of leaving him for the victim and he "took a drive to cool off", around the time of the murder.
  • Statements that defendant made to others that he had stolen an M16 from base, which fires a round that is similar to the one that killed the victim.
While this is strong circumstantial evidence of intent or motive to kill and some evidence of means and opportunity, it is inadequate, as a matter of law, to identify the defendant as the perpetrator.

Reversed.

Other Cases.

State v. Merrell. Appeal of judgment of conviction in 1st degree rape and indecent liberties, entered by Judge Charles Henry in Carteret County.

First, court did not commit plain error in failing to instruct on voluntary intoxication. Defendant was a drunk and argued that he lacked the necessary intent due to the incident occurring during a black-out.

To prove 1st degree rape, the state must show specific intent to have intercourse. For indecent liberties, the state must show specific intent to commit offense for purpose of sexual arousal or gratification. As such, voluntary intoxication can provide a defense where the intoxication prevented a defendant from forming specific intent, due to diminished capacity.

Here, significant evidence showed that defendant made careful plans and used trickery to create circumstances where he was alone with the victim to commit these crimes, suggesting ability to plan and form intent. Further, black-outs and amnesia only demonstrate an inability to remember intent; they do not preclude the ability to form intent at the time of the incident. As such, the evidence of a blackout was not sufficient evidence presented to support plain error for the court's failure to instruct on voluntary intoxication.

Second, court erred in ordering defendant to submit to lifetime satellite-based monitoring (at the conclusion of his 220 month active sentence).

First, while rape is a sexually violent offense by definition, the court can only go on to order lifetime SBM if there is evidence that the offense is an aggravated offense, if the defendant is a "sexually violent predator" a recidivist (all defined in the statute), or if he is of needing of the highest level of supervision. The court made no such findings. Remanded for hearing on those issues.

State v. Petty. Appeal of order of Judge Yvonne Mims Evans in Mecklenburg.

Defendant was convicted of DWI in District Court. He then appealed for a de novo hearing to Superior Court. The Superior Court granted his motion to dismiss on the basis that the District Court was without jurisdiction to enter the underlying conviction (the District Court entered judgment more than 3 weeks after accepting plea, without issuing a PJC, and improperly exercised jurisdiction).

Held: The Superior Court lacked subject matter jurisdiction to hear the District Court issues as a court of appeal and should have simply proceeded de novo. Everything that happened in District Court is annulled upon appeal to Superior Court.

Remanded for hearing.

State v. Taylor. Appeal of conviction entered for obstruction of justice.

Defendant, Barry Taylor, was the #2 guy in the Sheriff's Office. During a traffic stop, some of his deputies arrested a guy, Dr. Senft, for DWI. The Doctor's wife, a friend of Taylors, jumped on the horn and asked her friend for help.

When the officers arrived at the station, Taylor took him into a private office and returned later saying that Dr. Senft scored a .07 on the Alco-Sensor and said he should be released. He never showed anyone the results of the Alco-Sensor and never took the Doctor before the magistrate. Further, he'd never been trained in administering Intoxilyzer and, basically, everyone thought he was full of shit and covering up for his friend.

A grand jury indicted him (by then he was the Sheriff) for felony obstruction of justice. Venue was changed from Lincoln to Cleveland County. The jury returned a verdict of guilty of misdemeanor obstruction of justice and Taylor was placed on probation. Taylor filed an MAR arguing that the indictment was fatally defective and that the statute of limitations had run, which was denied.

First, the indictment of obstruction of justice was valid. The common law offense requires proof that the defendant acted to obstruct public legal justice. Under 14-3(b), if done in secrecy, deceit or with intent to defraud, it is a felony. The fact there is another crime, 14-223 for RDO that might describe defendant's conduct, this did not nullify the common law offense in these situations.

Second, even though the statute of limitation would have run if only charged on the misdemeanor, when a jury finds it as a lesser-included of the underlying felony, it follows the statute of limitations for the felony (which had not expired). (Note: misdemeanors have a 2 years statute of limitations, where as no statute of limitations bars prosecution of felonies.)

Here's some old press on this case if you're interested.


State v. Williamson. Appeal of conviction for assault on female entered by Judge Alan Thornburg in Yancy County.

Defendant was indicted for assault inflicting serious bodily injury (AISBI) and misdemeanor assault on a female (AOF) in October 2007. Defendant filed two pro-se motions for a speedy trial: a letter in 4/2008 and a motion on 4/2009. At the CMS hearing on 5/2009, his trial was scheduled for 2/2010.

On 11/2009, defendant drafted a pro-se motion to dismiss for denial of his speedy trial rights, which was denied.

Two issues: (1) federal right to speedy trial was not raised; and (2) 15A-711 right to formally request that a prosecutor return a defendant to the custody of local law enforcement in the jurisdiction in which he has other pending charges was raised. If the prosecutor fails to make such a written request to the place the defendant is held within 6 months, the defendant is entitled to dismissal. 15A-711 does not include a right to have the trial conducted, only to have the prosecutor make a written request.

First, a defendant does not have a right to counsel and the right to push pro se motion. Here, however, the defense counsel adopted the pro se motions by arguing them at hearing.

Second, state may have failed to comply with 15A-711 by making a written request to DOC to have defendant brought to the county within 6 months of the written request. The record is devoid of any findings on that issue. Remanded for hearing on that issue.

Michael Mead: Capital Murder Trial

Jury selection is underway in the capital murder trial of Michael Mead in Charlotte.

Mead was charged with first degree murder in Gaston County for the 2008 murder of Lucy Johnson. Johnson was pregnant at the time. The case was moved to Mecklenburg County due to the intense publicity in Gaston County.

Monday, the lead prosecutor Bob Forbes requested that the case be continued, due to his illness, but Superior Court Judge Forrest Bridges denied the request.

Opening Statements today in Jason Young case

As noted in prior post, the press reported a very strong prosecution case.

Here's the defense's theory, from WRAL's site:

"Defense attorney Mike Klinkosum, however, said there was no forensic evidence, not even a drop of blood, linking his client to the crime and that there were two sets of adult footprints – a size 10 and a size 12 – near Michelle Young's body.

"Jason Lynn Young did not murder his wife. He did not murder their unborn son, and this case has not been solved," he said.

A private forensic analyst hired by Jason Young's family found a hair on a picture frame in the couple's bedroom that had a DNA profile matching neither the suspect nor the victim. Samples taken from a jewelry box also didn't match either's DNA profiles. Nor did two cigarette butts found in the garage and the doorway leading to the kitchen.

"That DNA came back to two separate male individuals who have not been identified," Klinkosum said.

Klinkosum admitted that there was trouble in the marriage – that his client was having an affair with his wife’s sorority sister, that he was obnoxious and juvenile and acted like an “immature jerk.”

"What the prosecution is going to try to do is convict Jason because he was not a great husband. I will stand here right now and tell you he was not a good husband,” Klinkosum told jurors. "It is OK to be angry at him and mad at him for the things he did."

But that doesn't make him a killer, he said.

“They have got to prove to you that he drove almost three hours back, brutally killed his wife and got out of that house, somehow, without getting a drop of blood anywhere outside that house or in his car," Klinkosum said.

"And they have got to answer to you why there is DNA in that house that doesn't match anyone who lived there. They've got to answer that. At the end of this case, when it's over, you are going to see there is no physical evidence that links Jason Young to this murder."

Read the whole story here.

Monday, June 6, 2011

Jury Selection Underway in Jason Young Murder Trial

In Wake County, jury selection has begun in the Young Murder trial.

Mr. Young is charged with the beating death of his pregnant wife, Michelle Young. The couple's two year old daughter was found at the scene, unharmed.

Per press reports, there is significant evidence of guilt in this one. According to press accounts, Mr. Young's DNA was found in the room with the victim. Survellance video shows him leaving a hotel in Virginia that night by a side exit around midnight. Staff later found the door propped open with a rock-- goodbye alibi.

As usual, of course, the press has only been printing one side of the story. We'll see if there is more to this case as the trial develops.

Friday, June 3, 2011

Costs of a repeal of the Racial Justice Act

Interesting editorial in the Gaston Gazette yesterday by a former ADA, Thomas Johnson, talking about the Republicans plans (and likely soon to be successful plot) to repeal the racial justice act.

Johnson challenges Republican numbers on the cost of RJA. In fact, a repeal may ultimately result in more litigation costs than the act itself. The proposal isn't about money. What the proposed repeal is really about is preventing continued exposure of the lop-sided reality of the death penalty in North Carolina.

Can anyone really say they need more studies do we need showing bias before they are convinced?

But as usual the political answer is to pretend the bias doesn't exist, rather than to deal with it.

Hung Jury in Catawba County

On May 31, 2011, a jury in Catawba County hung in the first degree murder case of Adrian Harrison.

Harrison was charged in the shooting death of DeAngelo Miller. Mr. Harrison told the jury he shot in self-defense.

It is unknown yet if the state will re-try him.

Wednesday, June 1, 2011

Not Guilty in Scotland County

On Friday, a jury handed down a not-guilty verdict in the first degree murder case in Scotland County against Aubrey Odom. Mr. Odom was charged in a 2009 shooting.

Mr. Odom argued that he shot in self-defense. The jury agreed.

Read press here.