Wednesday, August 31, 2011

Stepp Testimony

News and Observer has a pretty thorough article today on Stepp's testimony.

I try not to reprint other articles, but I though this was worth a read:

"The only way I can explain it is, I don't know, it just like happened, and then I'm there and I'm like, 'What the hell.'"

Stepp talked about trying to put space between him and his stepdaughter after the incident.

"I didn't want something to happen again," Stepp testified, his speech halting. "I didn't want to just lose it and end up hurting her again."

But his older daughter called him back in. Cheyenne had a soiled diaper.

"I had to go in and change her," Stepp said. "I didn't want to, but you can't just leave a kid in a dirty diaper like that."

Stepp testified that when he put Cheyenne down to change her diaper, she was wriggling and kicking, trying to get away from him as he used wipes to clean her.

"I was holding her legs up," Stepp said. "She was just screaming and flailing."

Stepp said he did not sexually assault his stepdaughter.

"Oh God no," he said to one of his lawyer's questions about that allegation.

But he described getting toilet paper after changing Cheyenne's diaper, three or four times, and holding it under a bathroom faucet before returning to the bedroom where the child continued to cry.

"I went back in the room and just shoved it in her mouth," Stepp said. "I thought maybe she'd be quiet."

But she started choking, he said.

"I remember trying to pry her mouth open," he said.

He stuffed his fingers in, knuckle deep, trying to retrieve the toilet paper from her mouth. He was able to retrieve a big clump, he said.

As he picked her up and held her, he noticed how shallowly she was breathing. He put her down, he said, but she did not recover. Her little body seized, he said.

Stepp took the infant from room to room in the apartment as he and his 4-year-old hunted for his phone.

Then he dialed emergency dispatchers."

Mr. Stepp's attorneys do not deny that he is responsible for his child's death. Rather, his defense is that his actions are not first degree murder (no premeditation and deliberation and no sexual assault), but rather second degree murder. If convicted of 1st degree murder, Mr. Stepp could face death.

Read the entire article here.

Tuesday, August 30, 2011

Joshua Stepp Testifies

Joshua Stepp has begun testifying in his defense in his capital murder case in Raleigh. He is charged with murder and sex offense. If convicted, he could face death.

Psychiatrist: Nursing Home Rampage Should Have Been Prevented

Last week, Dr. George Corvin (right) testified in the case of Robert Stewart. Dr. Corvin's opinion is that Mr. Stewart was so mentally ill at the time of the killing that he could not premeditate and deliberate.
Dr. George Corvin

Of even more power, Dr. Corvin says the entire incident could have and should have been avoided. Stewart presented himself to his longtime doctors office two days before the shooting in a nervous state, crying and saying, "I don't want to hurt anyone."

Corvin said that, instead of doing a safety assessment, nurse practitioner Vonda Reeves let him leave her office and gave Stewart two medications: the antidepressant Lexapro and the anti-anxiety drug Xanax, which likely made his agitation and his anxiety worse.

"This was grossly inadequate. It was malpractice. Period," Corvin said.

Monday, August 29, 2011

NC Court of Appeals Criminal Decisions, August 16, 2011


State v. Anderson. Wilson County. Court erred in allowing defendant to represent himself.

Defendant was arrested for selling a controlled substance. At his first appearance in District Court, defendant waived his right to counsel by signing a "Waiver of Counsel." This was certified by the presiding District Court judge.

Subsequently, he was indicted for selling and delivering a controlled substance and obtaining the status of a habitual felon. He appeared in Superior Court and signed another waiver of counsel, which was certified. He represented himself and was convicted.

Sole issue: Was defendant's waiver of counsel knowing, intelligent and voluntary. State v. Reid sets out the guidelines for making a valid waiver. The judge must advise him of his right to counsel, ensure that he understands the consequences of a waiver, and understands the nature of the charges and range of possible punishments.

First, there is no transcript of the defendant's district court appearance, so we cannot tell if he was informed of the charges. Therefore, the district court waiver is invalid.

Second, the Superior Court waiver was invalid. The court failed to tell the defendant what charges he was waiving and what his potential punishments were. It is also not clear that the trial judge explained that he could get court appointed counsel (all the court said was that he could fill out a waiver request).

Judge Bryant dissented.

State v. Heien. Surry County. Trafficking conviction. Held that one brake light out is not a legitimate basis for a traffic stop.

First, challenge to the stop. Officer saw one of defendant's brake lights was out and stopped. Defendant argues that one functioning brake light does not violate 20-129(g), 20-129(d) or 20-183.3, and thus did not give rise to reasonable suspicion.

20-129(g): "No person shall sell or operate on the highways of the State any motor vehicle...unless it shall be equipped with a stop lamp on the rear of the vehicle." A stop lamp means just one. He had one working light, thus no violation.

20-129(d): Requires "all originally equipped rear lamps or the equivalent [to be] in good working order." These are separate and distinct from a "stop lamp," thus no violation.

20-183.3: Safety inspection requires functioning "Lights, as required by G.S. 20-129 or G.S. 20-129.1." As discussed above, this means only one light, thus no violation.

Because no violation, no reasonable suspicion for the stop, as having one working brake lamp is sufficient. Evidence should have been dismissed.

State v. Salinas. Rockingham County. Appeal of drug suppression order.

Police called about an erratic driver. They arrived and located the car. Saw the driver drive up onto a curb, back up, and pulled out into traffic, crossing over the lane while doing so. The officer saw he was not wearing a seatbelt and made a stop. During the stop, the officer smelled weed and searched the car, finding paraphernalia. He appeared intoxicated to the officers and made incriminating statements.

Trial court suppressed the evidence. State appeals.

First, at the suppression hearing, the state and defense repeatedly referred to "probable cause" to make the stop. Only reasonable suspicion is necessary to conduct a traffic stop. Because the trial court used the wrong standard, the case is reversed and remanded for re-evaluation.

McCullough dissents in part, arguing that the COA should rule that the stop was valid, rather than remanding for re-evaluation.

State v. Seymore. Pasquotank County.

Defendant signed a waiver of counsel in a DWI case. The court did not conduct a thorough inquiry.

To waive counsel, the court must inform you of your right to hire counsel and to apply for court appointed counsel and the nature and exposure of the charges you face. Here, court did not do that. Superior Court transcript was not thorough on this issue and the District Court hearing was not transcribed.

Remanded for new trial.

State v. White. Moore County. Appeal of denial of motion to suppress in drug case.

Facts: After dark, officers responded to an anonymous loud music call at an intersection. This was a high crime area. When they arrived, officers saw 3-4 men standing near a dumpster and no lound music playing. They questioned them about the loud music. As they got out of the car, the police yelled, "Stop, Police!" And the men took off running. Defendant tripped and fell. A detective jumped on top of him and handcuffed him. Police found a bag of crack on the ground next to him.

First, police lacked reasonable suspicion (obviously?) to conduct the investigatory stop. An unlawful seizure was attempted when they yelled, "Stop Police" and it occurred when the officer tackled the defendant. Defendant's flight does not provide reasonable suspicion, as there was no evidence that he fled knowing they were cops.

(An interesting note, however, is the court doesn't address the fact that the crack was on the ground and was arguably abandoned before the unlawful seizure occurred).

Other Cases.

State v. Arrington. Harnett County. Appeal of DWI.

At trial, evidence showed that defendant had glassy eyes and smelled of alcohol. His first roadside test was negative, his second positive. Back at the station, his BAC registered as .08 twice.

First, evidence was sufficient for conviction. Defendant argues that since he got a .08, when considering the margin of error, the court could not as a matter of law presume sufficient evidence was presented. The test was properly administered and reliable and sufficient for submission to the jury.

Second, judge entered judgment and added additional costs and community service fees outside the presence of the defendant. Defendant argues this violated his right to be present at the time the sentence in pronounced. Defendant was sentenced to community service in open court. The statute (143B-262.4) requires a $250 fee if community service is included. The ordering of community service, even though no mention of the fee was made, was adequate to have "entered judgment in the presence of the defendant."

State v. Castaneda. Mecklenburg County. Appeal of 2d murder conviction.

Defendant and victim got in a fight at a barbeque. The victim slapped defendant first, and then he stabbed him to death with a kitchen knife. Defendant tried for 1st degree murder; convicted of 2d and sentenced to 13 years.

First, defendant argues that the court erred in admitting the transcript of the interview by police, without redacting portions where the detectives say they don't believe the defendant and that other witnesses saw the defendant pick up a knife and stab the decedent. After which, defendant changed his story. Defendant argues that these statements are double hearsay (of the detective and of the 3rd parties).

State argues that these are not hearsay, as they were not offerred for the truth of the matter asserted. Rather, they are simply offered to explain subsequent actions. They simply provided context for defendant's answers and to explain the detective's interviewing techniques. Because defendant changed his story in response to those statements, they are admissible as non-hearsay. Likewise, because they were not admitted for truth, no confrontation clause problems.

Second, statements of the officer that defendant was lying was not impermissible opinion evidence. Accusations, during interrogations, are admissible as an interrogation technique, not as an opinion. No error.

State v. Flaugher
. New Hanover County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), robbery with a dangerous weapon (RWDW), maiming without malice, and possession of a stolen motor vehicle.

Defendant charged with hitting a man she was living with with a pickaxe and stealing from him.

Defendant allegedly previously assaulted him with a fork, injuring his hand. That case was voluntarily dismissed by the case.

First, At trial, evidence of the prior assault came in. The defendant argues it was impermissible under Rule 404(b) and constitutes plain error.

Held: Cannot, under 404(b), put in evidence of prior crime if defendant was tried and acquitted. If the case was simply dismissed, it may be admitted if there is sufficient evidence (as in any 404 issue).

Second, no error in instructing the jury that, as a matter of law, a pickaxe is a deadly weapon.

Third, double jeopardy argument (for Maiming and Assault) is waived, as it was not raised below.

State v. Johnson. Onslow County. Appeal of PWISD opium, trafficking opium, maintaining a vehicle, and possession of drug paraphernalia. Sentenced to 37 years.

Defendant arrested in controlled buy for selling 180 Vicodin pills for $350.00. The defendant had a prescription for the pills for pain caused by his diabetes, that he got from the Veteran's Administration.

No officer actually saw the money change hands, but the informant-buyer walked away with the pills and the defendant, upon arrest, was found with the $350. There was a video of the sale from the informant's camera and they showed this frame-by-frame to the jury.

First, defendant argues that it was error to sentence for both possession with intent to sell and trafficking, since they involved the same conduct. There is no double jeopardy problem and no "mutually exclusivity" problem (since proof of one does not preclude proof of the other).

Second, no error in finding that items on schedule III are "opium derivatives" for purposes of the trafficking statute (some opiates are on schedule III and some on schedule II, depending on the concentration of the narcotic to non-narcotic in the pills). The trafficking statute applies to the total weight of the pills (not just the narcotic portion). Thus, even though the schedule III of the same weight as schedule II will have much less opiate in it, it still qualifies as trafficking under this statute.

Second, no error in allowing the state to play an enhanced video, with blow-ups and frame by frame during closing. The court allowed it stating that it was the same evidence offered at trial. This was not an abuse of discretion.

Third, counsel was not ineffective for failing to object to characterizations of the buyer as a "confidential and reliable informant." Did not deprive of a fair trial, especially since there was a video.

37 years for this? What a collossal waste of taxpayer money...


State v. Khouri. Avery County. Appeal of convictions for multiple counts of indecent liberties, first degree sex offense, statutory rape, and statutory sex offense.

Defendant indicted for multiple incidents over a period of years against his grand daughter. As she aged, his actions violated different statutes.
  • 1st degree sex offense was under 13 (2000-2001)
  • Indecent liberties with a minor between 2000-2005
  • Statutory rape and statutory sex offense of a person 13, 14, or 15 (2002-2005)
First, while the court found there was sufficient evidence for most counts (the victim testified). One set of charges in the indictment indicated the offenses occurred in 2000. On the stand, the victim testified that the abuse began in 2001. These convictions (one 1st degree sex offense and indecent liberties) are vacated.

Second, no error in admitting 404(b) evidence of another child he abused (after this incident). Relevant to common plan or scheme. The crimes were sufficiently similar (both occurred to grandchildren in his care and began around the same age) and temporally proximate (began abuse another grand child within a year or so of the other moving out).

Third, not plain error to allow a clinical psychologist to testify about the "profiles of sexually abuse children" and that defendant's testimony was "consistent with this." Defendant argued this was inapporpriate "vouching" for a witness (an expert cannot testify that, in their opinion, the person is being telling the truth--at least not based solely on their statement, as this is an inappropriate bolstering of credibility).

While an expert cannot say that the testimony is "consistent with child abuse" or that, in the absence of physical evidence child abuse occurred, they can say the witness's statement "exhibits classic signs of a sexually abused child." Can anyone parse out the difference??

Fourth, defendant argues that the court inappopriately used Rule 412, the Rape Shield Statute, to keep out relevant evidence. Under 412, prior sexual behavior of the victim cannot be used unless it is shows the acts weren't committed by the defendant. The basic rule of this is you can't beat up a rape victim by pointing out she has had sex with other guys to show she consented to this sex act. It does not preclude prior inconsistent statements. The questions were:

  1. A witness said that the prior incident was committed by a "great grandfather." This answer was properly struck as non-responsive (not 412) (Q: Did Tina return to your home? A: She said she was sorry. She made a mistake. The great grandfather molested her.)
  2. A witness said Tina said his brother told her to make up the accusations to scare the defendant. This was impermissible hearsay (my brother told me she said...) and not 412.
  3. A witness said that, when Tina got pregnant, she didn't know if the baby was the defendant's or her boyfriends. Court ruled that 412 prohibited the statement. No error, especially since Tina had already said this on direct. Additional evidence would only have served to "humiliate" her.
State v. Louali. Mecklenburg County. Appeal of receiving stolen goods conviction

Evidence for the state: Undercover officer made a controlled sale at the "Global Electronic Center" of laptops to the defendant. and another man The officer said to the other man, within earshot of defendant, that he heard they would buy stolen property and that he ran into a business and took these laptops. The defendant offerred him $80.00. The exchange was made.

Held: Sufficient evidence for receiving stolen goods conviction, even though the officer never used the word "stole" or "stolen" to describe the laptops.

Under N.C. Gen. Stat. 14-71(b), "If a person knowingly receives or possesses property in the custody of a law enforcement agency that was explicitly represented to the person by an agent of the law enforcement agency or a person authorized to act on behalf of a law enforcement agency as stolen, the person is guilty." This requires more than implied knowledge, but rather an explicit representation that the property is stolen. However, the words "stolen" do not have to be used. Here, the officer saying "I heard you buy stolen goods" and that he "ran into a place and took the laptops" was sufficient for an explicit representation that the goods were stolen.

State v. Skipper. Sampson County. Defendant appeals habitual felon sentencing.

Defendant convicted of 3 felonies and senteced as a level V habitual felon to three 125M sentences, the top end of the presumptive range and ran all the sentences concurrently. The COA reversed one and remanded for resentencing.

On resentencing the court sentenced him to two 125M sentences and ran them concurrently.

Defendant argues that this was a violation of 15A-1335, which provides that the court, after winning an appeal, cannot sentence you harsher than it did the first time. Defendant essentially argues that he got 125 months for 3 charges (42M each), and now got 125 months for 2 charges (62M each) and this was a harsher sentence.

However, the COA found that he got 125M on each of the 3 charges, run concurrently the first time and this time got 125M on each charge, run concurrently, which is not a harsher sentence, but the same sentence. "Because defendant’s convictions were consolidated for judgment, this argument fails."

State v. Williams. Iredell County. Appeal of denial of motion to suppress.

Defendant stopped on suspected window tint violation. The ownership of the vehicle was questionable and the two persons inside had different stories (one said they were driving from Arizona to an unknown club, the other said from Kentucky to a club in Myrtle Beach). A check came back that all info was good.

After issuing a warning citation, the officer asked if there was any contraband in the car. He then asked to search and they said no. The officer requested a canine and, 10 minutes later, the canine walked around and alterted. The officer then searched the car.

Issue: did the officer have reasonable suspicion to prolong the stop for the canine search? Here, the totality of circumstances gave continued reasonable suspicion.

In Myles, after learning the license/registration checked, the cause for the original stop was at an end. The officer remained because the occupants were nervous and gave conflicting stories about when their rental car was due. The Court held that this was not reasonable suspicion to prolong the stop.

Here, the driver and defendant gave conflicting stories about their origin and destination, said they were cousins then said they just say that because they have a close relationship, one said the Defendant owned the truck and defendant said it was her friends, and the traffic was interstate. These combined factors give rise to reasonable suspicion to prolong the stop.

Judge McGee dissents.

Friday, August 26, 2011

State v. Khuram Ashfaq Choudhry

Today, the NC Supreme Court issued one criminal appellate decision, in the case of State v. Choudhry.

Choudhry was a non-capital case tried before Judge Henry Hight, Jr. in Durham County in September 2008.

Defendant and a friend, Umar Malik, went to settle a score and beat Rana Shazad to death with a baseball bat. The evidence against defendant included a friend who was in the stayed in the car while he went in to attack Mr. Shazad and defendant's girlfriend, Michelle Wahome, whom he confessed to.


Defendant's attorney, James "Butch" Williams, represented Ms. Wahome a few years earlier in a felony forgery charges. No party objected to the prior representation and Mr. Williams informed the court that he did not intend to cross examine Ms. Wahome on the prior incident.

Under Sullivan, defendant's have a right to conflict-free counsel. Successive representation of witness/defendants does not give rise to conflicts, absent special circumstances.

If the court is on notice of a potential conflict, the court must inquire into the propriety of the multiple representation and give the defendant an opportunity to show that the conflict impermissibly imperils his right to a fair trial.

Here, the prior representation presented at least a potential conflict of interest and an inquiry was necessary. The court conducted the following inquiry:

THE COURT: Mr. Choudry, I’m going to ask you some questions. You don’t need to keep your hand raised. If you don’t understand any question I ask you, tell me and we’ll go over it again until you do. Are you able to hear and understand me?


THE COURT: Do you understand that you are charged with First Degree Murder?


THE COURT: And you understand that that charge carries a possible maximum term imprisonment of life in prison without parole?


THE COURT: It has been indicated to this Court that a person may be called in as a witness in this case who was at some time in the past represented by your attorney, Mr. Williams. That witness being ... Michelle Wahome. You understand that?


THE COURT: And it’s further -– have you talked to Mr. Williams about that?

[DEFENDANT]: About the case?

THE COURT: No. Did you understand that Ms. Wahome might testify in this case and that Mr. Williams had represented her in the past?

[DEFENDANT]: Yes, sir.

THE COURT: Did you have any concerns about whether or not Mr. Williams can appropriately represent you in this case because he represented a witness for the State in the past?


THE COURT: Are you satisfied with his representation of you to this point?


THE COURT: And even in light of the fact that he represented a future witness in this case, do you desire for him to continue as your attorney in this matter?


THE COURT: And do you want to talk to him or me to make any further inquiry of him about his participation in that prior case or are you satisfied where you are?

[DEFENDANT]: Satisfied.

THE COURT: Okay. Thank you, sir.

Defendant argues that this was not a knowing, intelligent, and voluntary waiver of the any conflict. "The trial court did not specifically explain the limitations that the conflict imposed on defense counsel’s ability to question Wahome regarding her 2003 criminal charges, nor did defense counsel indicate that he had given defendant such an explanation. Accordingly, we are unable to conclude that the trial court established that defendant had sufficient understanding of the implications of Mr. Williams’s prior representation of Wahome to ensure a knowing, intelligent, and voluntary waiver of the potential conflict of interest."

Court ruled that where the defendant can demonstrate "an actual conflict of interest that adversely affected his defense counsel's performance" he is entitled to relief, citing Sullivan and Strickland.

The defendant's case rested on discrediting Wahome. Counsel cross examined her with vigor. Court found that any conflict, if any, did not adversely effect defense counsel's performance.

Thursday, August 25, 2011

COA halts dismissal of Durham Bones Case

In a one paragraph order, the COA today stayed the dismissal of the murder charge against Michael Dorman, II.

Judge Orlando Hudson dismissed the case based on the state's failure to preserve evidence.

Read the order here.

Stewart Trial Delayed

The death penalty trial of Robert Stewart has been delayed this week due to juror illness.

The defense is set, once proceedings resume, to begin putting on their mental health defense.

Tuesday, August 23, 2011

Defense Indicates Stepp Will Testify

Opening statements have been made and the trial in underway in Wake County against Joshua Stepp. Stepp is charged with murder and sex offense against his infant step-daughter.

During openings, the defense described a man with serious post-traumatic stress disorder losing it after he was unable, for hours, to soothe his daughter. He denies any sex offense.

The state painted a different picture, vilifying Stepp as a sex-abuser.

If convicted, Stepp could face death.

Monday, August 22, 2011

Defense Begins in Robert Stewart Case

Today, the defense will begin putting on it's case in the Carthage nursing home shootings case.

The defense will call a toxicologist and a psychiatrist. The testimony is intended to show that, do to Mr. Stewart's mental illness and drugs usage, his actions were involuntary. Most interesting, apparently Mr. Stewart was on a dosage of Ambien and was in a somnambulist state. It promises to be an interesting week in Moore.

Article here.

Thursday, August 18, 2011

Joshua Stepp Continues

In Raleigh, lawyers are finishing up picking a jury in the capital murder trial of Joshua Stepp. It looks like evidence could begin this week or early next week.

Stepp is charged with murdering his 10 month old stepchild.

Prosecution Rests in Robert Stewart Case

The prosecution finished today, after putting up a psychologist in the nursing home shooting case in Carthage.

The defense is expected to begin it's case in chief on Monday.

Press here.

Attorney General to Appeal Dismissal

The AG stated that it would appeal the dismissal of Michael Charles Dorman's murder charge. Judge Orlando Hudson dismissed on the grounds that the state had destroyed evidence, in spite of a court order to preserve evidence.

Press Here.

Wednesday, August 17, 2011

State Destroys Evidence; Judge Tosses Murder Charge

Yesterday, in Durham, Superior Court Judge Orlando Hudson dismissed a murder charge against Michael Dorman, II. Mr. Dorman was found with bones in a backpack that, according to the state, belonged to Lakeia Boxley.

The Defense had previously filed a motion to preserve all evidence. Shortly thereafter, the medical examiner--at the decision of the lead detective -- released the bones which were cremated. District Attorney Tracey Cline argued that this was medical examiner policy. However, it was determined that the police, not the medical examiner, released the evidence.

In light of these facts and the inability of the defense to test the crucial evidence, Hudson dismissed the case. The State, through incompetence or worse, botched this murder case.

After issuing the dismissal, Judge Hudson ordered that Dorman be involuntarily committed, until and unless a determination can be made that he is no danger to himself or society.

Press here.

Tuesday, August 16, 2011

Prosecution to Rest Soon in Nursing Home Case

In Moore County, the trial of Robert Stewart continues. The prosecution expects to rest this week.

Stewart's ex-wife is expected to testify today. The evidence presented clearly identifies Stewart as the perpetrator of the nursing home shootings. The case will turn on whether his state of mind was so impaired as to provide a defense to the killings.

If convicted of first degree murder, the jury will hear sentencing evidence and determine if Mr. Stewart should be sentenced to death or life in prison without the possibility of parole.

Read the press here and here.

Tuesday, August 9, 2011

Court of Appeals Criminal Decisions, August 2nd


State v. Boyd. Orange County. Appeal of conviction for burglary, kidnapping, sexual battery, and habitual felony.

Victim called police and said the defendant broke in to her house and sexually assaulted her and made her write her phone number on a scrap of paper before leaving. The victim knew the defendant from around the neighborhood. Police went to his house and saw clothes in a pile matching his clothes description. The officer mentioned that a woman had been sexually assaulted and the defendant said, "Yeah, I know." The officers told everyone to exit the apartment and cordoned it off while getting a search warrant. The Defendant said he wanted to pull a lighter out of his jacket pocket. Instead of a lighter, he pulled out the victim's phone number. Defendant then told police the encounter was consensual.

First, court erred in instructing jury on a theory of 2nd degree kidnapping not supported by evidence at trial and not charged in the indictment.

The court instructed on 2nd degree kidnapping by "confining or restraining or removing a person from one place to another." Court cannot submit alternative theories if one is not supported by the evidence. No evidence was presented of moving the victim to another place. As such, it was error to so instruct. While one can be removed by being taken from one part of the house to another, this victim was not "removed" by being made to move from standing in the room to sitting on the defendant's lap. This violates the right to a unanimous verdict (as there was evidence of restraint). New trial on the kidnapping charge.

Second, no error in instructing, on sexual battery, that defendant is guilty if he "touched “the sexual organ, breasts, groin [or] buttock[s], of any person” or if he touched another person with his own “sexual organ, breasts, groin, or buttocks.” This was supported by evidence, as the victim testified that the defendant attempted to touch her "everywhere."

Third, no error in the variance on the charge on burglary from the pattern, where the court gave the beginnings of the lesser included charge.

Fourth, no error in the court's failure to intervene, ex moro motu, to the following in the state's closing"

So let's go back to first degree burglary. The first element was breaking and an entry by the defendant. We know he was there because he was in the apartment. Was there a break-in? Yes, he got into that front door. She left it open. She made a mistake that night.
. . . .
She said on her——in her testimony——maybe I forgot to leave the front door open [sic].

Arguing that these were not supported by evidence. This error was not of such a magnitude as to have deprived him of a fair trial.

State v. Mann. Onslow County. Appeal of order requiring defendant to enroll in satellite-based monitoring (SBM).

Defendant pleaded guilty to indecent liberties and child abuse by a sexual act. Overview of SBM rules here.

For "aggravated" SBM cases--cases that, under the elements of the offense, involve forced penetration of a victim or a victim under 12--enrollment is mandatory (such as aggravated offenses). The Court found that this was an aggravated offense.

Because neither indecent liberties, nor child abuse by a sexual act is an aggravated offense, this was error.

Also noted that court used wrong procedure by viewing the DOC risk assessment before ruling on the aggravated offense issue.

Other Cases.

State v. Best. New Hanover County. Appeal of firearm by a felon and habitual felon conviction and sentence of 107 to 138M.

Defendant stopped when the light about his license plate was not working. In the vehicle, the officers saw (through the window) 3-5 open cans of beer and a plastic bag with white powder in it. Everyone was put in handcuffs. As the officer was picking up the cans, he saw the butt of a gun between the driver's seat and the passenger's seat. Defendant admitted the gun was his.

First, sufficient evidence was presented to maintain conviction. Constructive possession allowed if can prove "access" and "other incriminating circumstances." Here, the gun was in close proximity to the defendant and he told the officer it was his.

Second, no IAC for lawyer first raising his motion to suppress at the close of the state's case. The motion was denied on grounds that it wasn't properly raised pre-trial. Held: No prejudice by his attorney's actions, as there was reasonable suspicion for the stop.

Third, no error in using a prior conviction for both an element (conviction of firearm by felon) and the habitual felon (3 prior felonies). This is not the kind of "double counting" condemned in other Gentry (which held that the DWI conviction used to establish habitual DWI cannot be used in the prior record level).

State v. Davis. Iredell County. Appeal of 24 counts of indecent liberties, 6 counts of statutory sex offense, and six counts of 2d degree sex offense.

Victims described a serious of sex assaults, occuring over the course of years, describing them as occurring every Friday. Defendant challenges the sufficiency of evidence for multiple conviction, arguing that each incident was not separately proven by detailed testimony. To prove sex assault, the victim does not have to give specific days/description for each charged incident. "In his testimony, Marvin clearly described discrete instances of different types of sexual acts perpetrated upon him by defendant over a long period of time. Taking this evidence, in the light most favorable to the State, it was sufficient to withstand defendant’s motion to dismiss the charges against him."

State v. Jarvis. Appeal of order to enroll in satellite-based monitoring (SBM) for 10 years.

Defendant pleaded guilty to four counts of indecent liberties with a minor. The trial court determined that this was a reportable conviction ("a sexually violent offense") and an "aggravated offense," and that the DOC had found that he required the highest level of supervision and placed him on 10 years of SBM.

1st) As the court has held over and over again, indecent liberties is not an "aggravated offense" for SBM purposes. This is a clerical error and is remanded for correction.

2nd) No jurisdictional error or due process error for the court entering an SBM order without first providing notice of the grounds by which he might be subjected to SBM. Notice required in the statute only applies to persons not incarcerated, 14-208.40A. Incarcerated persons are not entitled to that type of notice.

3rd) Indecent liberties is a "reportable offense" as it inherently involves the physical, mental or sexual abuse of a minor.

4th) Court erred in holding that the defendant required the highest possible level of supervision. The DOC risk assessment classified him as a low risk and he had no prior record. Some of the findings were without factual basis. Remanded for determination on this, only to consider competent evidence of whether the defendant lacked remorse and it this provides a basis for the conclusion that he requires the highest possible level of supervision.

5th) SBM is not a double jeopardy violation or 8th amendment violation.

State v. King. Moore County. Appeal by state of trial court grant of defendant's "motion to suppress evidence of repressed memory, recovered memory, traumatic amnesia, dissociative amnesia, psychogenic amnesia, and other synonymous terminology."

In a child sex case, the state sought to enter evidence by an expert that the reason the victim failed to report the alleged crime for 9 years was due to dissociative amnesia/memory repression. Trial court found that (1) expert testimony was questionable, but might be sufficiently reliable under Rule 702 (and Howerton) (for more on this, see my recent post on amendments to rule 702), but (2) under Rule 403, the prejudicial value substantially outweighed the probative value.

Held that, under Rule 403, it was not an abuse of discretion. Did not take up the 702 issues.

Judge Hunter dissented.

State v. Lupek. Chatham County. Appeal of conviction for manufacturing marijuana and maintaining a dwelling. Challenge to the search.

An officer, on defendant's front porch, saw a bong through the window. He subsequently entered and seized this and other plain view evidence that became the basis of the charge.

Defendant argues that the officer had no legal right to be on the front porch and in position to see the plain-view contraband. The officer was called to the scene after learning that some dogs were loose and a neighbor shot one. While investigating, he met a neighbor, Sweatt, who smelled like marijuana and was nervous. He asked her for ID, she went in to retrieve it, he followed behind and this was when he saw the bong (and "the odor of fresh marijuana.") At that point, Ms. Sweatt consented to a search.

Defendant argues that the porch is within the curtilage of the home and the deputy could not be there without a warrant.

"The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself...Because an individual ordinarily possesses the highest expectation of privacy within the curtilage of his home, that area typically is afforded the most stringent Fourth Amendment protection."

However, entrance by the police onto private property for the purpose of inquiry/interview is proper. They are entitled to go to the front door and knock. This was what was happening here. No invasion upon the right of privacy occurred.

State v. Mack. Caswell County. Appeal of PWISD Cocaine.

Appeal of refusal to disclose confidential informant. The state must disclose the identity of confidential informants where (1) the informant actually takes part in the drug transaction for which the defendant is charged and is not a mere tipster or (2) there is a conflict of material facts that the informant could clarify.

Here, the CI introduced the defendant to the undercover officer and vouched for him. Then the officer made a purchase. Defendant argues that his identity is relevant because: (1) he could testify that it was not defendant but someone else who actually made the deal and (2) he was involved in the transaction.

(1) The officer identified the defendant in a picture after the sale and in person at trial. No evidence was presented that the defendant was not the seller, thus no conflict.

(2) Where, as here, the CI introduces the two, is present at the actual sale, but does not provide money or accept drugs, he is not involved in the transaction. "Simply being present for the transaction, even after introducing the parties, did not make the CI a participant."

State v. McMillan. Cumberland County. Appeal of 1st degree felony murder conviction of Rosario, 2nd degree murder of Robinson, and robbery with a dangerous weapon (RWDW) of Rosario (but not Robinson).

Defendant charged with shooting and killing two people, Robinson and Rosario. Basically, what happened was that, during a "drug deal" defendant stole a gun out of the one of the victims safe and shot and killed the two victims. He told a friend after that he "had some words" with the people, was high, and made a mistake.

(1) Negating Malice with "Has Some Words": held that the evidence from a friend that he "had some words" with the victim did not make a finding of malice for second degree murder insufficient. Further, no error on judge's failure to instruct on heat of passion voluntary manslaughter on this statement.

(2) Sufficient evidence of RWDW. Defendant argues that he cannot be convicted with RWDW, since the "deadly weapon" is the same thing as the object he stole (i.e. obviously he couldn't have stolen the gun by robbing with a dangerous weapon, as he didn't have a dangerous weapon until he stole the gun). HELD: "There is “no reason why the use of a weapon stolen from the victim cannot also be a part of the continuing transaction of the armed robbery... Under applicable North Carolina cases, the temporal sequence of events is not significant."

(3) Defendant argues error in allowing forensic pathologist to testify about an autopsy performed by another pathologist. Constutional error cannot be raised for the first time on appeal. Waived. But, arguendo, no error as the 2nd pathologist made his own independent opinion and was present during the autopsy.

(4) No error in admitting evidence from swabbings of the defendant, photographs of injuries, and his belt and shoes, as all were freely given to the police. Defendant voluntarily went to the sheriff's office, was told he was not under arrest. Defendant said he didn't want to talk without a lawyer, but gave consent for the swabs, photos, and evidence. His consent was not invalidated, even though officers told him if he didn't consent, they would detain him until they could prepare and execute a search warrant.

State v. Parker. Forsyth County. Appeal of RWDW.

Appeal dismissed due to no jurisdiction. To give proper notice of appeal, you must either file written notice of appeal within 14 days or give notice orally at the close of trial. No evidence or oral or written appeal being properly given.

Monday, August 8, 2011

North Carolina To Get Daubert Standard?

As part of the tort reform legislation, the legislature amended rule 702. While this was intended to reduce the ability of plaintiffs to successfully sue doctors, it may have the unintended consequence of preventing the state from presenting junk science in criminal cases.

The new rule (new text in bold) reads:

"(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case."

For years, North Carolina Courts have rejected the Daubert test, a federal decision that creates a greater role for judges to act as gate-keepers before scientific evidence reaches the jury.

In recent years, federal agencies and others scientists have challenged the legitimacy of many "forensic sciences." Things like toolmark examination, bite mark examination, handwriting examination, trace DNA, etc. have all come under attack and many federal courts are refusing to allow entry of that type of evidence unless supported by reliable scientific evidence.

The North Carolina cases specifically reject Daubert and offer a more limited basis and give the courts wide latitude in determining reliability. See Howerton 358 N.C. 440 (2004) and Goode, 341 N.C. 513 (1995).

focuses on whether the method is reliable and whether method was reliably applied to the data. NC Courts have focused if the expert used established techniques, the expert's professional background, and, a personal favorite, whether the expert used visual aids. In so doing, NC Courts have specifically acknowledged that the standard of reliability is lower in NC than in the feds.

The new rule mirrors some of the language in Daubert and moves away from the language of Goode. This seems to be strong support for adopting a Daubert standard here in NC and keeping out more of this junk science. How the court will analyze this issue, however, remains to be seen, as the act is not effective until October 1, 2011.

Thursday, August 4, 2011

Witness Describe Carnage in Carthage Shooting

In the Robert Stewart trial, survivors and other eye-witnesses have been testifying to the awful scene at the nursing home where Stewart shot and killed 8.

Press here and here.

Tuesday, August 2, 2011

Robert Stewart Trial Begins

On Monday, lawyers in the Robert Stewart case gave opening statements. Today, evidence continues.

The Defense opened on a theory that Mr. Stewart was on an overdose of Ambien at the time and had no recollection of the shooting: "Blood drawn from Stewart at the hospital on the evening of March 29 showed 12 times the normal dosage of the sleep medication Ambien in his system, as well as the antidepressant Lexapro and the anti-anxiety drug Xanex." The defense proposed that the drug combination worked havoc on his fragile system (due to serious mental health issues), resulting in the conduct.

The State offered that Mr. Stewart was deliberative and intentional in his conduct.

Mr. Stewart faces death if convicted.

Press here.