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 Defendant argues that, by making himself a witness to the case, his attorney should have withdrawn from the case.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...

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