Friday, July 29, 2011

Court of Appeals Criminal Decisions, July 19, 2011

Reversals.

State v. Floyd. Buncombe County. Appeal of revocation of probation.

Defendant convicted for failing to register as a sex offender and given 36 months supervised probation, with 15-18M suspended sentence. Court imposed the special condition to "participate in sex abuse treatment program and complete to the full satisfaction of the treatment provider."

Probation officer filed a motion to revoke probation for failing to pay costs, fines, and supervision fee of $1,680.50. Defendant then filed an affidavit of indidency.

The next month, the probation officer filed another motion to revoke probation for failing to comply with the special condition. At hearing, it was learned that, while defendant complied with the sex abuse treatment, he was ultimately discharged unsuccessfully for failing to pay.

Defendant testified that he was laid off and got another job with a plumbing company (making $10.00). There, he got electricuted and had been out of work indefinitely due to serious injuries. Defendant argued he had not willfully violated probation, as he could not afford to pay. Trial court found a willful violation and revoked him.

HELD: Defendant's violation was not willful, because he was unable to pay. It is unconstitutional and violates 15A-1345(e) to revoke someone for their inability to pay.

Court also notes that, under the Justice Reinvestment Act, a judge cannot revoke for failure to pay a fee.

State v. Pope. Harnett County.

Defendant, a City of Coats employee, embezzled money from the scrap metal recycling program. Defendant was a rival of the mayor and believed the prosecution was politically motivated, as other employees who participated were not charged.

Trial court dismissed based on selective prosecution and entrapment by estoppel.

Held: (1) No selective prosecution. A defendant is entitled to a dismissal if they can show that the state administered justice with "an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of justice is still within the prohibition of the Constitution."

To win, you have to show that: (1) you were singled out while others ere not; and (2) the discrimination was invidious and done in bad faith for "such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights."

No one ever wins these claims. While Mr. Pope convinced Judge Lanier, the COA took it away.

(2) Entrapment-by-estoppel is when a person, reasonably relying on statements of a government official that the conduct is legal, breaks the law. Insufficient evidence presented of explicit permission.

Reversed and remanded for trial.

State v. Sorrow. McDowell County. Appeal of revocation of probation.

Defendant charged with violating probation. At his first appearance, he signed a waiver, that was uncertified. A month later, the defendant admitted violation, represented himself, and was revoked. At the end, the court had him sign another waiver, this time certifying it.

Held: Waiver of counsel was invalid. Cannot hold a revocation hearing until you have a valid waiver. Here, no inquiry on right to counsel was held on the record. The written waivers notwithstanding, you cannot have a valid waive without a full inquiry to determine if the waiver is knowing, intelligent, and voluntary.

"Although the transcript shows that the trial court advised defendant of hisright to counsel for the probation revocation hearing, there is nothing in the record or the transcript indicating that the trial court conducted a thorough inquiry that showed that “defendant understands and appreciates the consequences of the decision to proceed pro se, and that the defendant comprehends the nature of the charges and proceedings and the range of possible punishments.”


Other Cases.

State v. Banks. Johnston County. Appeal of felony motor vehicle fleeing to elude arrest.

Defendant fled from police during a routine stop and eventually flipped his car.

First, to be convicted of felony (rather than misdemeanor) fleeing, the jury must find 2 of 8 aggravators (speeding, DWI, reckless driving, property damage, DWLR, speeding in a school zone, passing a stopped school bus, or having a child in the car). The Court instructed on this and submitted reckless driving, property damage, and DWLR to the jury. Defendant objects that court didn't make them find each one seperately and that this created a risk of a non-unanimous verdicts (jurors finding different aggs). Courts instruction found adequate.

Second, court did not explain what reckless driving means. Not plain error.

Third, defendant argues there was insufficient evidence of damage to property, even though the $1,000 of damage was exclusively to defendant's car. Court doesn't rule on this issue, finding there was adequate evidence of DWLR and reckless driving.

State v. Brown. Wayne County. Appeal of possession of firearm by a felon.

Police observed a house with heavy foot and vehicle traffic. Saw defendant walk from house to front of police vehicle. Police got out (one wearing a "police" t-shirt). Defendant "nervously" asked for a cigarette. Told him to put his hands on the car and asked him if he had a weapon. Defendant said yes and they found the gun.

Sole issue: IAC for failing to raise a motion to suppress on the grounds of an invalid stop. Here, there was reasonable suspicion because (1) defendant approached the police, causing them to fear for their safety; (2) high crime area; (3) prior drug arrests in front of the house; (4) lots of car and foot traffic around the home; and (5) when defendant noticed the people in the car were police, his demeanor changed and he became nervous.

State v. Carrouthers. Mecklenburg County. Appeal of denial of motion to suppress.

The trial court suppressed finding that the defendant was unlawfully seized when he was placed in handcuffs. It came up to the COA and they remanded for further findings of if the cuffing was necessary to carry out an investigatory stop (reasonable suspicion plus "least intrusive means", rather than a straight p/c standard). See post on that decisions here.

The trial court then upheld the search and defendant appeals.

Officer witnessed what he believed to be a hand-to-hand drug transaction. The defendant denied it, saying he passed a cigarrette. The officer frisked the defendant and felt a lumpy item "consistent with narcotics." The defendant was handcuffed for "officer safety," because there were two other individuals in the car. Searched and crack found.

HELD: Two other people standing outside the car was a "special circumstance" that justifies cuffing a suspect for completing a Terry frisk, if there is reasonable suspicion. Here, there was not probable cause, but there was reasonable suspicion. "Cuffing of suspects during [a] Terry stop where suspects outnumbered officers and where officers were concerned for safety was reasonably necessary to achieve purposes of Terry stop."

State v. Castillo. Orange County. Appeal of 1st degree murder, discharging a weapon on educational property, discharging wepon into occupied property, 2 counts assault with a deadly weapon with intent to kill (AWDWIK), 2 counts possessing a firearm on ed property, and 3 counts of possession of a weapon of mass destruction.

On August 30, 2006, defendant shot and killed his father, then went to the Orange High School with pipe bombs, a sawed off shotgun, and a rifle. He set off smoke bombs and shot into the air, then shot at students who were standing outside. Here's an article on it from the time.

The defense put on an insanity defense, focusing on defendant's prior suicide attempt, fixation with the Columbine shootings, and psychological history. Defendant stated to the officers who accompanied him to jail after the shootings that he "was going to save those kids from sex, drugs, pornography, and abusive people like [his] father in their lives[.]" An expert for the defense testified that the defendant knew his conduct was legally wrong, but believed it was morally right.

First, trial court did not err in refusing to instruct the jury that the insanity defense applies if a defendant believes his conduct is morally right. The insanity instruction includes being "incapable of distinguishing between right and wrong." Held that this wasn't plain error, because the defense argued this distinction and the jury was still instructed on insanity. As such, jury confronted this issue (and as such, apparently ruled that he was did not believe his actions were morally right), even though they were not directly instructed on it.

Second, state during closing said,

"But -- so the defense in his case, they are faced with the dilemma. You know what the defendant has been thinking about. You know about all these plans. You know about all these preparations. So a factual defense just isn't going to work. So where do you go next? Well, obviously because the defendant did have mental illness the next place to go is --"

Defendant then asked to approach and a bench conference was held and was unrecorded. As such, any objection and ruling was not preserved for appeal.

Standard then whether the judge should have intervened "ex mero motu" -- if it was so prejudicial and grossly improper as to interfere with the right to a fair trial. Held that this didn't go that far.

State v. Ellison & Treadway. Ashe County. Appeal of trafficking in opium convictions of two defendants.

Basic facts: Informant the cops that that a John Shaw would fill a hydrocodone subscription, give it to Treadway, who would then sell it to Ellison and then come back to Shaw with some of the money. During one transaction, police pulled over defendant (based on the informant info and tracking Shaw's transactions at a CVS pharmacy), and found the drugs.

Issue #1: Trial court denied a motion to dismiss and disclose the informant's identity.

First, stop was legal, as there was reasonable suspicion. Informant was reliable, given the CVS trail (police waited for Shaw to fill the prescription, then followed it into Ellison's hands).

Second, no error in refusing to give info about the informant. Under 15A-978(b), you only have a right to the identity of the informant if there is no corroboration of the informants existence (i.e. reason to believe the informant does not exist). Here, the existence of the informant was not in doubt. (Note: appears that he didn't raise the constitutional issues regarding informants).

Issue #2: Challenges the trafficking statute as cruel and unusual, given the small amount of drugs Lorcet pills that qualify as trafficking in opium (because they count the filler weight, not just the active ingredients). Liability for trafficking includes the total weight of the pills, not just the active part. No error.

Issue #3: No error in joining defendants for trial. Fact that prior crimes of one co-defendant came in didn't unfairly prejudice the other co-defendant. The testimony was only about a few drug transactions and didn't take up more than 2 witnesses of time. Not unfairly prejudicial.

Issue #4: No 404(b) error in putting in prior crimes, since they were relevant to establishing knowledge of drug trade and not unduly prejudicial.

Issue #5: No error in testifying that hydrocodone is an opiate on rebuttal. The Judge led the state do this after defense made a motion to dismiss at the close of all evidence, pointing out the missing element. Defendant argues it was offerred for the sole purpose of curing state's failure to present evidence that the drug was opium, rather than appropriate rebuttal purposes.

NCGS 15A-1226 gives trial judges clear discretion to permit a party to introduce additional evidence at any time prior to a verdict. No error.

State v. Griffin. Forsyth County. Appeal of conviction for obtaining property by false pretense (OPFP).

A surveillance video showed defendant stealing someone's purse. 20 minutes later, a credit card in the purse was used to purchase a computer from Walmart, about 3 miles away.

First, sufficient circumstantial evidence where the OPFP was made within 20 minutes, using the stolen card.

Second, indictment for habitual felon was not facially defective. List of the prior as "Possess Stolen Motor Vehicle", rather than "Possession of Stolen Motor Vehicle" is, at worst, a technical deficiency and provided adequate notice to the defendant. ("We hold that defendant’s argument is “hypertechnical” in nature.")

State v. Lee. Wayne County. Sentenced to 58 years.

Defendant charged with twelve armed robberies with a sawed-off shotgun, wearing a camoflauge jacket and a black ski mask, stealing money and Newport cigarrettes. Jury convicted on 10 counts.

First, no plain error in court failing to declare a mistrial when a potential juror, during jury selection, said, "“I really can’t say because I know some of Mr. Lee’s record . . . I’ve dealt with him in district court." This did not affect his right to a fair trial.

Second, no error on instructing on doctrine of recent possession. To get a recent possession instruction (that the jury may infer guilty from recent possession of stolen goods) the state must present sufficient evidence that:

(1) The property was stolen
(2) The porperty was found in defendant's custody and subject to his exclusive control; and
(3) Recently after the larceny.

Here, defendant found with Newport cigarettes shortly after a robbery. He argues that the state had not proven the Newports were stolen (i.e. they are fungible and how can you tell one pack from another). Held that the Newports had sufficient circumstantial basis for a jury to find that they were stolen-- that they were the same amount (packed in a plastic bag "to the bursting point" with Newport Cigarettes) and there was a sawed off shotgun and camoflauge jacket next to them.

Third, no error for convicting the defendant of 10 counts of possession of a firearm by a felon and possession of a weapon of mass destruction for each robbery, even though each possession was of the same weapon. If the weapon is used to commit multiple substantive offenses that are not part of one continuous transaction, you can get dinged for possession on each one.

State v. Leonard. Wake County. Appeal of DWI, AWDWISI, Serious injury by motor vehicle, fleeing to elude arrest, hit and run, and habitual felon.

Defendant, drunk, during a domestic dispute, drove his car into his girlfriends car, then drove away. Stopped when an officer, who heard about the incident, saw him driving with his bumper hanging off. He ran a red light at 55 mph, trying to avoid being arrested. He crashed into someone else, injuring them.

1) Defendant challenges the serious injury by motor vehicle, which requires proof that the injury was proximately caused by a DWI violation. Defendant argues that the cause was running the red light and eluding arrest, not the DWI. DWI need not be the only cause, just a cause. Given that he was drunk, sufficient evidence was presented as a jury could determine that, if he had been sober, he could have (even if he was eluding arrest) avoided the accident.

2) Sufficient evidence to aggravate the eluding arrest to a felony. To be convicted of felony eluding, the jury must find two aggravators: speeding, DWI, reckless driving, negligent driving causing property damage, DWLR, school zone violation, passing school bus, and having a child in the car with you.

Defendant argues (a) the indictment fails to adequately charge the aggravating factor of reckless driving and (b) the proof of DWLR violated his confrontation clause righs (using a notice that was mailed to him).

(a) Indictment was valid, as it said reckless driving, even if it didn't specifically allege how the driving was reckless.

(b) State used an affidavit of a DMV employee to show that he had notice of his DWLR. No objection when admitted, thus confrontation issue was waived. No plain error, since 2 other aggs (reckless driving and property damage) present.

State v. Mungo. Mecklenburg County. Appeal of sentencing for habitual felon.

Held: No error in state using one prior felony to make the case habitual and a different felony that was sentenced the same week to count for prior record level points. While felonies convicted in the same week cannot be double counted for prior record level (and felonies used for habitual felony cannot be used for prior record level), when there is two in one week they can be used for habitual and prior record level.

State v. Phillpott. Edgecombe County. Appeal of 1st degree murder conviction.

During a "drug deal gone bad," defendant shot and killed the dealer.

First, the state called an eye-witness, who testified that the defendant was not the shooter. Then it called a detective to testify that the eye-witness previously told him it was the shooter, including picking him out of a line-up.

Court goes on a contorted explanation of why this eye-witness statement was not inconsistent with the statement offerred by the police. Thus, not an inappropriate prior inconsistent statement and thus no problem (because if the state isn't surprised, they don't get to put up prior inconsistent statements). Further, the inconsistency of the out-of-court ID and the in-court refusal to ID was not properly objected to and not preserved.

Second, no error in refusing to grant mistrial when, after 7 hours of deliberating, a juror said that deliberations would not change anything (after they came back the next day, they convicted). Since it was only 7 hours, not a gross abuse of discretion.

Third, sufficient evidence presented where two people saw defendant with victim, heard gunshots outside the room, and when came back in victim was dead.

Judge Beasley concurred in a seperate opinion, stating that he believes the statement was inconsistent, but that the prior inconsistent statement was allowable as the state was surprised.

The case on "surprise" is: "The trial court may permit the State to impeach its own witness when “the district attorney has been misled and surprised by [its] witness, whose testimony as to a material fact is contrary to what the State had a right to expect.” State v. McDonald, 312 N.C. 264, 269, 321 S.E.2d 849, 852 (1984)

State v. Stanley
. Greene County. Appeal of possession of controlled substance in jail.

First, defendant argues judge erred in not removing his restraints during trial. Case law shows that shackling a defendant violates the presumption of innocence and can be prejudicial. However, it is allowed when the judge finds "the restraint to be reasonably necessary to maintain order, prevent the defendant’s escape, or provide for the safety of persons." Here, defendant was incarcerated on charges of murder and kidnapping. For that reason (alone) the judge said it was unsafe for him not to be shackled. Held that this was not an abuse of discretion. Further, while it was error to failing to instruct jury not to hold the shackling against the defendant, this was not prejudicial.

Second, one officer testified about orders given him by another officer. This was not hearsay as it was not offerred for truth, but rather to explain the officer's subsequent conduct.

State v. Stephenson. Gaston County. Appeal of probation revocation.

Defendant was sentenced to probation, with condition that she enroll and complete drug treatment at a local organization. She was charged with violations for testing positive for drugs and being thrown out of the drug treatment program.

First, no error in not giving defendant credit for time spent in the in-patient treatment program against her sentence. Custody in a drug treatment facility (such as DART-Cherry or IMPACT) can count towards a sentence if it is actual "confinement." Here, the facility (the Potter's House) was run not by DOC. If it is run by the state and requires confinement (like DART-Cherry or IMPACT), then it counts. If not, it doesn't.

State v. Wade & Young. Cleveland County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) and firearm by a convicted felon.

During a party, where people were drinking and using drugs, a fight broke out. Terrance Ross's girfriend asked Wade to give her a ride somewhere. He then smacked her in the face. Arguments ensued and Young asked Wade to "let me see the heat" and Wade gave him a gun. Then Young shot Terrance Ross three times. Ross lived. Then the defendant's left together.

One witness testified that there was a scuffle and fight over the gun, whereas the victim said that, while he had a fight with his girlfriend and words with the defendants, the shooting was an unprovoked attack in the back.

First, state objections were sustained to questions posed to different witnesses about: (1) the victim being a convicted felon; (2) observations about how intoxicated other witnesses were; (3) whether the victim was "favoring his back pocket like he was getting ready to whip his gun out; (4) after defendant left, the owner of the house said "lets go get a gun and re-up"; (5) a witness overhearing someone say "get my gun, get my gun." Found that these were either not preserved or harmless.

Second, state "impeached" the victim by inquiring about prior statements made at the probable cause hearing, based off the DA's memory of the PC hearing (as there was no transcript), to which the victim said he "couldn't recall." Held that it was harmless error.

Third, no inconsistent verdicts in the jury convicting on AWDWIKISI and acquitting on attempted murder. Verdicts only impermissible if "mutually exclusive." Here, they have some overlapping elements (intent to kill and failure to kill), but the rest are different.

No prejudicial error.

State v. Whitley. Durham County. Appeal of attempted breaking and entering.

Facts: Victim heard a noise outside her house and saw a black man, in a black shirt, with a do-rag, and with two puffy poneytails. She hit the window and he ran away. Officers were familiar with someone matching that description and went to his house. He was wearing a white shirt and "two big puffy ponytails." Officers searched him and found a do-rag and latex gloves in his pocket. They did a show-up and he was ID'd by the victim.

1) Insufficiency waived as motion was not renewed at the close of all evidence.

2) A witness for the defendant said he saw the defendant walking in another neighborhood at the time of the crime. The state put on a prior inconsistent statement that he saw defendant and another person walking together. No analysis--found harmless.

3) No error in court failing to define "larceny" for the jury.

State v. Wingate. Lincoln County. Appeal of PWISMD cocaine.

Only issue is prior record level at sentencing. Defendant argues the state did not prove the priors.

To prove priors, the state may meet it's burden through:

(1) Stipulation of the parties;

(2) An original or copy of the court record of the prior conviction;

(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts; or

(4) Any other method found by the court to be reliable.

Defendants priors included sell/deliver cocaine. If it's a sale, it's a class G; if it's a delivery, it's an H (4 versus 2 sentencing points). Defendant argues that this was a question of law, not fact, and his stipulation in the plea transcript (that it was a G) was not valid. HELD: This was a question of fact, the defendant stipulated to it, and thus the state met it's burden

Thursday, July 28, 2011

Jason Young: Released on $900,000 Bond

Today, Jason Young's family posted a $900,000 bond for him. After being in jail for nearly 5 years and sitting through one murder trial, tried to a hung jury (8-4 for not guilty), he will now await his second trial out of custody.

CORRECTION: While the murder occurred in Nov. of 2006, Young wasn't charged until late 2009, so he was only in jail waiting trial for nearly two years, rather than five, as pointed out by a helpful commenter.

Robert Stewart to Open Monday

Attorneys will open in the Robert Stewart case in Moore County on Monday at 9:30am.

Stewart, a mentally ill man, is charged with killing eight senior citizens during a shooting spree at a nursing home. Jurors are being bussed in every day from Stanly County, due to extensive media coverage.

Press here.

Monday, July 25, 2011

First Racial Justice Act Hearing Set

Judge Gregory Weeks set for first substantive hearing a racial justice act claim in the case of Marcus Robinson in Fayetteville. The case will look at the pattern of jury selection and disparate treatment of black defendants and white victim cases.

Statewide studies conducted in the last year show that prosecutors strike eligible blacks from jury at more than two times the rate of eligible whites. Further, the studies show that blacks are more than 3 times as likely to receive death if their victim was white.

The hearing is set of September 6, 2011. Press here.

Sunday, July 24, 2011

The Automaton Defense

The Fayetteville Observer is reporting that Robert Stewart's defense team may put on an automaton defense.

Basically, scientific literature shows that people on Ambien often sleep walk and sleep live -- (driving, having conversations, etc.). There is some suggestion that Mr. Stewart may have committed the shooting while in an sleep-walking state, induced by Ambien.

If this is true, it is a complete defense to the crimes. To be guilty of murder, you must have the requisite "Mens Rea"-- i.e. mental state and the requisite "Actus Reus"-- i.e. committing the underlying acts.

Mens Rea Defenses-- notably insanity -- argue that, due to the defendant's craziness, they couldn't form the necessary intent.

Automotonism, however, negates the act requirement-- if you do something when you are sleep walking, you don't actually do it. It is not a conscious act.

It will be interesting to see where this one goes (or if the Defense even offers this theory). Read the Observer article on this here.

Friday, July 22, 2011

12 Jurors Seated in Robert Stewart Case

In Moore County, the state and defense have selected 12 jurors. They are currently selecting alternates.

Robert Stewart (pictured right with one of his lawyers, Jonathan Megarian), is charged with shooting and killing eight people in a Carthage nursing home. If convicted, he could face the death penalty.

Read press here.

New Trial Date Set for Jason Young

Today, District Attorney Colon Willoughby announced his office would retry Jason Young (above). A new trial date has been set for Oct. 10, 2011.

Young's case was tried to a hung verdict. The jury initially hung at 8-4 for acquittal, then finally hung at 6-6.

Judge Stephens set a bond at $900,000.

Wednesday, July 20, 2011

New Castle Doctrine Law

On June 17th, "AN ACT to provide when a person may use defensive force and to amend various laws regarding the right to own, possess, or carry a firearm in North Carolina." became law. S.L. 2011-268.

Castle Doctrine. The new law creates a presumption of fear of death in the home, including the curtilage, the workplace, or a car. Under existing law, a person cannot use deadly force unless there is a reasonable fear death. This law creates a new presumption that if you are in your home, workplace, or car and use defensive force against someone who has broken in, you had a reasonable fear of death. This doesn't apply if the person killed was a co-occupant, a legal custodian, a police officer, or running away, or if the shooter is committing other crimes in the house (think drug dealer).

Basically, if someone breaks into your house/car/office and you are in it, you can kill them. Not because it's OK to kill people for breaking into cars (e.g. you see someone breaking into your car, you can only use non-deadly force to stop them), but because the law now presumes that someone in that situation would reasonably fear that the person breaking into a house/car with them inside will use deadly force against them.

DA's and Guns. DA's, if they have a concealed gun permit, can carry their gun anywhere but court and places banned by federal law.

Minor's and Guns. Increases the penalty to Class 1 for a minor possession a handgun.

Restraining Orders. No longer requires persons with 50Bs against them (restraining orders) to give up ownership of guns. They just can possess or carry them while the 50B is valid.

Soliciting an Illegal Gun Sale. Creates the crime of soliciting, persuading, encouraging, or enticing a dealer or private seller to sell guns or ammunition in violation of the law, as a Class F Felony.

Expands Places You Can Carry a Handgun. OK at state parks, rest stops, and hunting preserves.

Reduces Punishment for Not Carrying Your Permit. Carrying a handgun, but forgot to carry your permit. This is now an infraction, rather than a Class 2 misdemeanor.

Court of Appeals Rules to Protect Students

Students used to never win. No matter how unreasonable, the courts always said the principals were right. Until the U.S. Supreme Court ruled, in Safford Unified School District, that strip searching students on little or no information goes to far.

This is NC's first attempt at this since Safford:

In re T.A.S. I don't usually post about juvenile cases, but this one cries out for coverage.

The Brunswick County Academy (below) is a school for troubled children. At the door to get in, there is a metal detector and a search of effects occurs.

On November 5, 2008, the school received a tip from one of the students that some pills were going around that weren't safe. The tip didn't name any students.

School principal, Sandra Robinson, then undertook a school-wide search, in children's pockets, shoes, socks, and finally, under outer clothing, including underneath girls' bras. The girls were required to perform a “bra lift,” where they “pull their shirts out,” “shake them,” and “go underneath themselves with their thumb in the middle of their bra [to] pull it out.” All in the presence of school officials and at least one male law enforcement officer.

The search was a blanket search for contraband, without any reasonable suspicion for particular students.

During the search, one student had a percocet pill on her. She was charged and challenged the search.

HELD: While generalized searches for weapons are allowed, this level of intrusion on so limited suspicion is unconstitutional.

Yay for rights of children to be free from being terrorized by schools! But just barely...

Steelman Dissented.

Monday, July 18, 2011

Jury Selection Begins in Joshua Stepp Trial



Today, jury selection began in the capital murder trial of Joshua Stepp in Wake County. Stepp is charged with the first degree murder and first degree sex offense of his 10 month old step-daughter, Cheyenne Yarley, in November 2009.

His attorneys have asserted that, while Mr. Stepp's conduct caused her death, he is not guilty of premeditated first degree murder or sex offense. Stepp came to police attention when he called 911 to report that his stepdaughter was choking on toilet paper.

The case will likely take six or more weeks. If convicted, Stepp faces the death penalty.

Another capital trial in Wake County is surprising after a jury returned a life verdict in the case of Samuel Cooper in April 2010. Mr. Cooper was convicted of serial murders. His life verdict led Orange County District Attorney Jimmy Woodall to say, "You look at that case as a prosecutor and say, 'If you can't get the death penalty in that case, gee, what case are you going to get the death penalty in?" (Read old post on this here).

You have to wonder, given the current climate (executions have been in moratorium since 2006 and the entire death penalty is under sustained attack due to demonstrated racial bias and SBI scandal), if the Wake County DA is wise to use so many resources to try another capital case.

Mistrial in Nash County; Not Guilty in Cumberland County

Nash County
On Friday, Judge Quentin Sumner declared a mistrial in the case of Antonio Wardell Matthews (left) when jurors could not reach a verdict.

Matthews was charged with the 2008 murder of his brother, 22-year-old brother, Devin Scriven, in a motel room.

Cumberland County
On Friday, a jury acquitted Mark Andrews of the 2006 murder of Boyd Constant. Andrews had been held in county jail since January 2006 and walked out Friday a free man. Constant was shot in his home.

Both cases were tried non-capitally.


Michael Mead Releases Statement

From the Gaston Gazette:

"I would like to personally thank the 15 jurors who rendered a just and fair verdict. Thank you for the time, dedication and hard work they put in for the past 7 weeks. The jury unanimously voted to acquit. I have never waivered in my claim that I was innocent and I have feel vindicated by verdict. The jury was comprised of a variety of people from the community. Many jurors were college educated and some have gone on to earn Masters Degrees and higher. Even the alternates would have voted not guilty and I think that speaks volumes. After the verdict was read, I was able to thank the members of the jury and I did, personally. Again I thank them all for giving an innocent man his life back."

The full statement is here.

Thursday, July 14, 2011

Johnston County DA Signs Up For Public Humiliation


Johnston County DA, Susan Doyle, sued her best friend, Christi Stem, for sleeping with her husband.

"I have no idea why she did it," said state Rep. Leo Daughtry of Smithfield, a Republican and longtime booster of Doyle. "If she had asked me, I would have told her not to do it. Ever. I don't know why anyone would want to air their dirty laundry."

Read the full story here.

Tuesday, July 12, 2011

Michael Mead: NOT GUILTY

A Mecklenburg jury just returned a not guilty verdict against Michael Mead for 1st degree murder and arson. Mead could have faced a death sentence if convicted.

Not guilty verdicts in death penalty cases are exceedingly rare, even when the defendant has a solid case. Mead and his counsel, Lisa Dubs, are pictured to the right.

Story here.

New Legislation

These new laws have been passed and signed by the governor. I put them in topical alphabetical order because that's the way I am... Also, I didn't include the Justice Reinvestment Act. I posted on it earlier here.

Bond. S.L. 2011-277. (SB 135). Allows consideration of juvenile record (felonies and A1 misdemeanors) in setting bond.

Discovery. S.L. 2011-250 (HB 408). Strengthens language in discovery statute making it clear that all law enforcement agencies have a duty to give reports/etc. to the prosecutor, who then must give it to the defendant. Exempts crimestopper reports and Victim Impact Statements from the discovery law (absent a court order). Creates a presumption of good faith compliance by the prosecutor for discovery violations, further protecting them from sanctions.

DWI Punishment Enhancement and Custodial Interrogation of Jjuveniles. S.L. 2011-329 (SB 241)
  • DWI: Requires DWI Level 1 sentencing if a minor is in the car at the time of offense.
  • Interrogation of Juveniles: requires electronic recording of interrogations of juveniles in A, B1, B2 and the class C offenses of rape, sex assault, and AWDWIKISI.
DWI Punishment Enhancement Part 2 (Laura's Law). S.L. 2011-191. (HB 49). Requires an "aggravated level 1" punishment for person convicted with 3 or more aggravators present. Punishment for "aggravated level 1" is $10,000 fine and 12-36 months in prison with no parole. Can be suspended, if an intermediate sentence is imposed with 120 days imprisonment and continuous alcohol monitoring.

Exclusionary Rule. S.L. 2011-6. (HB 3). Adds a good faith exception to the exclusionary rule ("Evidence shall not be suppressed under this subdivision if the person committing the violation of the provision or provisions under this Chapter acted under the objectively reasonable, good faith belief that the actions were lawful."). Calls on the Supreme Court to overturn State v. Carter, 322 N.C. 709 (1988), which held that the good faith exclusion did not apply under NC law. Carter was based on the NC Constitution and cannot be overturned by act of the legislature. Apparently, there is litigation on-going to try to convince the courts to overturn Carter.

Expunction. S.L. 2011-278 (SB 397). Allows expunction for "non-violent" felonies committed before 18. These are class H or I felonies, except sex offenses, heroin possession, methamphetamine possession, possession of cocaine with intent to sell, assaults, and motor vehicle crimes. To get the expunction, you have to file 4 years after the sentence, complete 100 hours of community service, have a GED or high school diploma, and two personal character references.

Forensics. S.L. 2011-19 (HB 27). Creates the "NC Forensic Science Advisory Board," inside the DOJ (rather than an independent agency, as originally envisioned), to monitor the lab and create protocols. Only allows admission of forensic evidence if completed by an accredited lab. Requires discovery of lab "bench notes."

Intimidating a Witness. S.L. 2011-190 (SB 268). Increases the punishment for intimidating a witness, NCGS 14-226(a), from a Class H to a Class G felony.

New Drug Offenses. S.L. 2011-12. (SB7) Here's to winning the war on drugs!

New Schedule I Drugs:

  • Mephedrone: an amphetamine-like synthetic stimulant.
  • MDPV: a psychoactive stimulant. *Misdemeanor if less than 1 gram.
  • New Cathinone Derivatives: a psychoactive stimulant ("A compound, other than buproprion, that is structurally derived from 2-amino-1-phenyl-1-propanone by modification.
New Schedule VI Drugs:
  • Synthetic Cannaboids: and lists a bunch. My understanding is that this is far from a complete list and new synthetic cannaboids are arising every day.
Possession of <7g is a class 3 misdemeanor (like 1/2 oz of marijuana), <21g is a class 1 misdemeanor (like 1 + 1/2 oz of marijuana), possession of 21g+ is a class I felony.

Creates trafficking counts for Mephedrone, MDPV, and the synthetic cannaboids.

Sex Offender's Can't Be EMS Anymore. S.L. 2011-37 (HB 59). Hope you like being unemployed, homeless, and marginalized. I'm sure that will help with recidivism.

Unborn Victims of Violence Act (Ethen's Law). S.L. 2011-60. (HB 215). Creates offense of 1st degree murder, 2nd degree murder, manslaughter, voluntary manslaughter, AISI, and battery of an unborn child. No requirement is necessary of knowledge that the victim (well, I guess the victim's mother...) was pregnant (except presumably 1st degree murder under non-felony murder theory, defined in the statute as "Willfully and maliciously commits an act with the intent to cause the death of the unborn child").

Notably, 1st degree murder of an unborn child is not punishable by death.

Tampering With Ignition Interlock. S.L. 2011 (HB 761). Makes it a class 1 misdemeanor to tamper with an ignition interlock device. Person convicted of DWIs can be ordered to install an ignition interlock device, which requires the driver to blow in it and verify sobriety before the car will start.

Eric Bellas Reinstated

The Catawba County DA did the right thing and reinstated Eric Bellas to his post as Assistant District Attorney.

Bellas got a DWI at the statewide district attorney's conference, when he drunkenly wrecked a bike on the property of the resort where the conference was being held.

From press reports: "Chief Legal Assistant Donald Farr of the Catawba County District Attorney's office said in a statement Thursday that a review of the case indicated the allegations against Eric Bellas didn't require further discipline."

Good for them. That was silly. Drunk biking is the second most responsible choice (right behind not getting drunk).

Deliberations Continue in Mead; Case Begins in Moore County

Mecklenburg County: The jury continues to deliberate in the Michael Mead case. The jury is mulling over the evidence, including a screenshot showing that Mead was at home, playing video games during the murder.

Moore County: Jury selection began yesterday in the case of Robert Stewart, the "Nursing Home Shooter." Stewart (below) entered a nursing home in Carthage and shot 11 people, killing 8 of them in 2009. Jurors are being bussed over from Stanly County due to the extensive pre-trial publicity. Stewart faces the death penalty if convicted.

Monday, July 11, 2011

Deliberations Begin in Michael Mead case

Closing arguments were completed Friday. Jury deliberations began on the issue of guilt this morning in Mecklenburg County.

Press here.

Thursday, July 7, 2011

Justice Reinvestment Act: A Primer

Governor Purdue signed the Justice Reinvestment into law last month. These changes will be going into effect on December 1, 2011. Read the full act here.

Ends the meaningful distinction between intermediate and community punishments.
First, changes the conditions that qualify for intermediate punishment. The new punishments are
  • House Arrest
  • Community Service
  • Up to 6 Days per month in Jail for up to 3 Months (served in 2-3 day periods)
  • Substance abuse assessment and treatment
  • Education or vocational skills assessment and training
  • Satellite-based monitoring
Under the new rules, a court may require these for community punishments (the C block of the punishment chart) and must include at least one for intermediate punishment (the I block).

Amends the authority of the probation officer to require additional tasks. Now, a probation officer, without order of the court, can make a probationer (and subject them to violation for non-compliance) do the following in a community punishment.
  • Do 20 hours of community service (50 if its an intermediate punishment)
  • Report to the office anytime
  • Submit to substance abuse treatment/assessment
  • House Arrest
  • Submit to confinement up to 6 days a month, for up to 3 months
  • Submit to a curfew
  • Participate in vocational rehabilitation.
An offender can challenge this, but they also can waive this by signing a form with their probation officer, without court appointed counsel.

Habitual Breaking and Entering. Creates the crime of "habitual breaking and entering." Second breaking and entering convictions are punished as Class E felonies (rather than class H).

Reduced Sentencing for Habitual Felon. Makes sentencing for habitual felon be 4 classes higher than the felony charged, up to class C, rather than automatically a class C. So, if you get charged with an H, you can be sentenced as an D, rather than as a C under the old law.

Probation Revocation. Allows the court, for violations other than absconding or committing new crimes, to incarcerated the probation violator for 90 day periods in county jail. There is also a line that "The court may not revoke probation unless the defendant has previously received a total of two periods of confinement under this subsection." This sounds like it means that, for violations other than new charges/absconding, the judge has to give 90 day incarcerations twice before revoking for the entire period.

Deferral. Creates a right to deferral in drug cases for first offenders for simple possession and misdemeanor cases.

Makes administrative changes to jail drug programs and housing of prisoners in county jail versus state prison.

Victim's Mother Criticizes Prosecutor in Michael Mead Case

The mother of Lucy Johnson, Michele Dye, has called for a "mistrial" in the Michael Mead case, because she believes that he will be found not guilty. Ms. Dye complains that the state hasn't put on a very good case against Mead (right). Mead is on trial for murder.

Her solution--declare a mistrial and re-try him.

The state has rested in the case and a "mistrial" due to weak evidence cannot and will not happen.

However, this is a very rare event where a victim family member publicly comments negatively about the prosecution while the trial is on-going.

QUOTES: "We need a new prosecutor," she said Wednesday outside the courtroom. "Lucy is not getting proper representation. The evidence is there." and Dye says the prosecution has presented a weak case, failed to present specific evidence or enough expert testimony.

Basically, the state's presentation has not convinced the mother of the victim beyond a reasonable doubt, although she continues to know in her heart that Mead did it. Will this same "weak evidence" convince the jury?

Mead faces death if convicted.

Tuesday, July 5, 2011

NC Court of Appeals Criminal Decisions, 7/5/2011

State v. Billinger. Appeal of conviction for possession of weapon of mass destruction and conspiracy to commit robbery.

The state alleged that defendant and some friends were driving around. They considered robbing a Hardee's but it was closed. Then, defendant asked to be dropped off a Food Lion, to "find some money" and that he was going to try and rob it or "something like that."

Defendant then approached a man in the parking lot and told him to give him his money. In the excitement, defendant discharged the shotgun and hit the victim in the arm, then ran away without taking any money. Defendant's friends picked him up.

Defendant was charged with attempted murder, attempted robbery, assault with a deadly weapon with intent to kill inflicting serious injury, conspiracy to commit robbery, and possession of weapon of mass destruction. The jury acquitted on all counts except for conspiracy and possession.

First, held that state presented sufficient evidence of possession of a weapon of mass destruction. Defendant concedes a sawed-off shotgun is a weapon of mass destruction and sufficient evidence of constructive possession in statements of friends that defendant owned a shotgun that looked like the one recovered.

Second, the indictment for conspiracy was fatally defective. An indictment is defective if it fails to allege all the elements of a crime or give defendant adequate notice of the crime charged. A conspiracy is (1) agreement of 2 or more people, (2) to commit crime, and (3) with intent of at least 2 of them to commit crime.

The indictment simply said "defendant named above unlawfully, willfully and feloniously did with Jevaris Charan McArn, Kerry Kurtis Braithwaite, and Jonathan Wilson Jackson to commit the felony of Robbery With a Dangerous Weapon." It left out any operative language (i.e. did agree to commit, etc). The indictment failed to allege an agreement and is thus fatally defective.

Conspiracy conviction vacated.

State v. Cleary. Defendant had pending criminal matters and a pending probation violation. Defendant and the state tendered a plea agreement, intending to resolve the probation violation and the criminal charges at the same hearing. The court rejected the plea, then refused to continue the probation violation hearing. This caused the defendant to enter a worse plea to be able to wrap them all up together.

Under 15A-1023(b), a defendant is entitled to a continuance if the trial judge refuses to accept a plea. Defendant argues that, under these circumstances, the statute provides a right to a continuance in the criminal case and the probation violation case. Held: No such right. No error in court refusing to continue the probation violation. The right only extends to the criminal case in which the plea was rejected.

State v. Joe. Appeal of conviction for resisting, delaying or obstructing a police officer and possession with intent to sell cocaine.

At a pre-trial hearing, the defendant moved to suppress the evidence. This was granted and the judge went on to dismiss the RDO and the possession charge. State appeals.

Evidence: Officer testified that he was in a high crime area at 2:00am and saw the defendant, a black man standing on the corner with a hoody on. When the officer, in a "jump out van," saw the van, his "eyes got big" and he turned and walked behind the apartment building. The officer jumped out to "engage in a consensual conversation with the defendant." Defendant yelled, "Police" and ran away. The officer began to chase him yelling, "Police, stop." Eventually found behind a unit. Officer ordered him to put his hands up. He didn't. Officer took him down. In the area where defendant had been seated, he found a bag of crack.

First, elements of RDO are (1) police officer; (2) defendant knew it was an officer, (3) the officer was discharging a duty of office; (4) the defendant resisted, delayed or obstructed the discharge of that duty, (5) willfully.

Flight from a lawful investigatory stop is RDO. However, flight from an unlawful stop or a consensual encounter is not RDO. While an officer may approach a citizen for a consensual encounter, the citizen can refuse to converse or even run away. Only when there is a legal stop (attempted stop) and non-compliance can RDO be found. Here, the officer did not have reasonable suspicion to stop the defendant. All he had done was stand outside with a hoody sweatshirt on in a high crime area. That is insufficient basis for a stop, all running aside. The officer's stop (after defendant fled) was not lawful, thus no RDO.

Second, the suppression appeal is not perfected, because the state entered a VD after the suppression was granted.

State v. Norman. Appeal of conviction for two counts of 2d murder, DWI, and speeding. Sentenced to 33+ years in prison.

Harley and Helen Carter were driving east on Pleasant Ridge Rd. They came to a stop sign. Stopped. Then turned left in front of defendant's truck, failing to yield the right of way. He was on Old Highway 21 and had no stop sign. He was speeding at 75 miles an hours. He slowed to 60 by the time the collision occurred. The speed limit was 45 MPH. An expert testified that the collision could have been avoided by breaking or veering to the right.

Defendant was given a blood test about an hour and a half afterwards (8:06pm) and his BAC was .03; at 8:49pm his BAC was .01. He also tested positive for cocaine. A forensic toxicologist testified that, using regression analysis, his BAC at the time of the accident was .08 and that his cocaine use was recent. He admitted to officers that he drank 4 beers.

Defense expert testified that the cocaine was consume within 9 hours of the accident and the accident could have occurred after it wore off.

First, no error in a lay witness who was at the scene, testifying that defendant appeared impaired. Lay persons can give opinions if it is rationally based on their perception. This was.

Second, no error in submitting as 404(b) evidence, the defendants' prior convictions for DWI. They were relevant to show malice. They were from 1995, 2001, and 2006. The DWI portions were relevant and recent. Extraneous matters (RDO and paraphernalia convictions attached to some of them), may have been irrelevant, but they were harmless.

Third, state's expert, Mr. Glover, was appropriately qualified as an expert at trial. Two issues: (1) is the method sufficiently reliable and (2) is the expert sufficiently qualified in the area. Defendant only challenges the second prong. Mr. Glover was sufficiently satisfied: he took a 36-hour course in 1998 and a 28 hour course later on the issue and was the head of the Forensic Test for Alcohol branch at the NC DSS. He has published on the issue and been qualified previously. His lack of formal degree is not fatal.

Fourth, Glover's opinion about the amount of cocaine in the defendant's system was not so unreliable as to be inadmissible. His half-life analysis was sufficiently reliable, even if it was disputed by the defense expert.

Fifth, sufficient evidence of malice for 2nd degree murder. :"Sufficient evidence of malice exists . . . where the defendant's acts show cruelty, recklessness of consequences, . . . or manifest a total disregard for human life." Multiple prior DWIs, combined with a present DWI and speeding is sufficient evidence of malice for 2nd degree murder. Further, defendant's actions were the proximate cause of death. Defendant argues that the victim's failure to yield was the proximate cause. However, there was substantial evidence that, despite the victim's violation of driving rules, defendant had the last clear chance to avoid a wreck and could have, if he was sober.

Sixth, no error in running the two 2d degree murder convictions consecutively. No evidence in transcript that this was done to punish defendant for exercising right to trial.

Here's the transcript. Not surprising he got dinged and, in the COA's opinion, nothing inappropriate about the judge's action.

[DEFENDANT]: First of all, I was not impaired. I know on account of my record why I was convicted. That's the only thing. . . .

THE COURT: But do you, do you think it's okay to drink four beers and then get into a
car and drive?

[DEFENDANT]: Sure do.

. . . .
THE COURT: . . . Because you know what's wrong, the problem with the DWI law? Exactly what you just said, people trying to figure . . . how close they can get to the limit and still drive when they should be trying to figure out how to stay as far away from the limit if they're going to drive.

. . .
THE COURT: Mr. Norman, here's the problem, . . . With one, two, three, four, five prior DWIs if your mind is thinking that you should drink anything and drive it's messed up! It's messed up! If you think that it's okay after five DWIs to drink and drive anything out of your yard your mind is messed up, your reasoning is messed up! You're still thinking it's . . . okay. People [who] drink and drive and drive impaired always think it's okay.
. . . .
THE COURT: Even the people who blow thirty something still think they're okay. Now, I
want you to be quiet because anything after, you say after this point is just going to cause me to raise the amount of time I give you in this case. . . . Mr. Norman, I'm tempted to give you the maximum sentence in this case but it's sort of counterproductive. You're fifty-five years
old. I don't have to. If I give you thirty years you'll be eighty-five years old if you do the best you can do and you're in the minimum of sentences. If you get to the maximum, which is more up to two hundred forty-nine months, plus two hundred forty nine months, you'll have to be one of the oldest people in North Carolina in order to get out. So I don't have to give you two twenty [-year sentences] back to back in order to do that. . . . I do believe that this accident happened . . . because the Carters pulled out of the intersection. But, the fact of the matter is . . . that you . . . make bad decisions that put yourself at risk and put other people at risk because you don't have an appreciation for alcohol and yourself and you still haven’t learned and it's now been since 1973
that you keep experimenting and hoping that you're going to take this — well, since 1972
— that you're willing to keep taking this chance. And the sad part is, just since 1990 you've been doing it more often rather than less often. And you stand up in court . . . and all you do by standing up in court is justify. And, let me tell you, that's appalling. You'd been a lot better off if you hadn’t stood up and said one single solitary word, but you did. Sometimes you help yourself, sometimes you don't.

First rule of sentencing, if you're going to say anything, say you're sorry for those two people you killed...

State v. White. Appeal of conviction for 3 counts of sell marijuana, one count of delivering Percocet, one count of possession of firearm by a felon, and one count of possession non-tax paid alcohol.

Defendant arrested for making sells to officers/informants during controlled buys. When the officers were executing a search warrant on his house, defendant was present and had a loaded handgun in his pants. Defendant lost 2nd amendment motion to dismiss and motions to suppress. Entered plea, specifically reserving the right to appeal the motions to dismiss and suppress and appealed.

Trial court erred in accepting defendant's plea with term in it that he reserved the right to appeal the motion to dismiss. Upon guilty plea, a defendant can only reserve a motion to suppress; he cannot reserve a motion to dismiss. The court lacks jurisdiction to review that motion. Because the trial court erred in accepting a plea with that term, the plea is vacated.

Dissent by Steelman: Argues that the appeal should be dismissed as neither issue is perfected, because the defendant didn't provide copies of the underlying motions that were filed at trial.

Friday, July 1, 2011

Non-Suit on 2 of 4 Charges in Michael Mead's Case

Michael Mead is on trial for his life in Mecklenburg County, for the murder of his pregnant fiance, Lucy Johnson. Mead alleges it was his girlfriend's jealous ex-boyfriend, Jim Spelock, who Johnson was in a heated custody battle with.

Superior Court Judge Forrest Bridges threw out two of the four charges at the close of the state's case, finding insufficient evidence to proceed on charges of Rape and Burglary. Charges of murder and arson were allowed to proceed.

Witness testimony showed that Mead and Johnson had consensual sex prior to her death. No evidence was presented to suggest a forcible rape.

The defense is presenting it's evidence today.

Two Interesting Stories to Cap off The Week

First, Greg Taylor, who was exonerated after spending 17 years for a murder he did not commit, has sued the scandal ridden SBI for cheating and lying, which placed him in prison. The SBI lab testified at his trial that there was blood in his car based on a field test, which was the only physical evidence tying him to crime. What the lab agent left out--and hid from Mr. Taylor's lawyers--was that a more sophisticated confirmatory test conducted at the lab that showed it was not blood.

Taylors case is only one of many that have been identified for mishandling of blood evidence by the SBI.

Second, the foreman, George DeMartz, on the Jason Young jury has publicly come out and commented to the press. "There was no doubt in my mind that there was reasonable doubt in this case." The state is determining whether or not to retry Mr. Young. He remains in jail, where he has been since his 2006 arrest.