Tuesday, September 27, 2011

Murder Cases Proceed To Trial

Around the state, a number of murder trials are moving forward.

Antwan Pittman
In Bertie County, openings were today in the case of Antwan Pittman. Pittman is charged with the killing of Taraha Shenice Nicholson. Ms. Nicholson was strangled and her body was found under a bridge. The authorities have publicly speculated that Pittman is a serial killer, involved in the death of 8 women in the Rocky Mount area. Presumably, they have little evidence to back up those claims as he is only on trial for one murder count.

Pittman was originally charged in Edgecombe County, but the case was moved to Bertie due to publicity. This case is non-capital.

In Robeson County, jury selection is underway in the case of of Larry Robinson. No information could be found on this case in the press. This case is capital.

Tuesday, September 20, 2011

Familiar Themes in New Innocence Panel Case

Kenneth Kagonyera
In Asheville, the Innocence Commission is hearing the claims of Kenneth Kagonyera and Robert Wilcoxson, who say they are not guilty of the 2000 murder of Walter Rodney Bowman.

A bandanna was found at the crime scene, believed to have been worn in the robbery-murder. SBI Lab agent Mark Boodee tested the bandanna, which came up with DNA that did not belong to Mr. Kagonyera or Mr. Wilcoxson. Agent Boodee testified that he passed this information on to the DA Ron Moore, who didn't share it with the defense. Both men pleaded guilty to avoid the death penalty, under advice from their lawyers.

Robert Wilcoxson
Years later, in 2003, Robert Rutherford snitched in a federal case, offering up that he was involved the in the robbery murder with Bradford Summey, and Lacy Pickens. Despite in-court assertions otherwise, for years the state and DA Moore dragged its feet and failed to test the bandanna DNA against Rutherford, Summey, and Pickens. The bandanna DNA was finally tested, and matched Summey (who was killed by a police officer in 2006 in an unrelated incident).

What's striking is yet another incident of crucial, exonerating evidence being withheld from the defense. Now, 10 years later, the commission must decide whether or not to right that wrong by making a finding of innocence. The panel is hearing this and other evidence in Asheville to make that decision.


Saturday, September 17, 2011

War of Words Continues in N&O

I think the N&O is getting the better of this one...

Passionate "misstatements" versus fact-checked reporting.

"Cline apparently believes that if you wave your arms and yell loud enough, people will believe you. In her 45-minute rant Wednesday night, she made several other misstatements. We will publish more about this soon.

Cline is an effective orator who feels great compassion for victims. But in communicating in broad strokes, she pays little attention to detail, as if it doesn't matter. She has her story, and she's sticking to it, the facts be damned.

Cline says she would never lie in court. Let's give her the benefit of the doubt and say her memory has failed her from time to time, as it apparently did Wednesday night.

But in the end, she's the district attorney for Durham. She is an officer of the court. She is responsible for what she says. The facts matter, regardless of how fast Tracey Cline speeds past them."

Tuesday, September 13, 2011

Life for Stepp

After 5 1/2 hours of deliberation, the jury in the Stepp case was unable to reach a unanimous verdict. Under NC law, this automatically results in the imposition of a sentence of life without possibility of parole.

No reports yet of what the split was.

Will the State finally stop seeking death in Wake County? First, Samuel Cooper, convicted of a spree of execution style murders, and now Joshua Stepp, convicted of sex assault and murder of a 10 month old, both ending in life sentences. Save us some money, Colin Willoughby, the jig is up.

Jury Deliberating on Life and Death in Wake County

Joshua Stepp on the stand
In the Wake County case of Joshua Stepp, a jury is deliberating on if Mr. Stepp should live or die for his actions that caused the death of his 10 month old step-daughter.

Yesterday, at 4:00pm, the jury came back and seemed to be indicating that it had decided for a life without the possibility of parole verdict. However, they were not unanimous on the verdict form and Judge Smith sent them back for further deliberations.

Today is Day 2 of deliberations. They began yesterday after closing arguments were complete.

Monday, September 12, 2011

Closing Arguments in Stepp Sentencing

Closing arguments are underway in the sentencing of Joshua Stepp in Wake County. A jury must decide if his life is so far beyond redemption as to be forfeit.

Excellent video on WRAL of the sentencing testimony:

Thursday, September 8, 2011

Joshua Stepp Found Guilty

Jury just came back with a verdict of guilt to first degree murder under felony murder theory of technical sex offense, but not rape. Jury did not find premeditation and deliberation.

A sentencing hearing for Stepp, a former infantryman who suffers from PTSD, will begin soon. The jury will then have to choose between life and death.

Tracey Cline Responds

The N&O ran a bunch of emails sent by Cline responding to the allegations, calling it a "terrible injustice."

Story here. As well as the email correspondence between Cline and the writer.

9/26 NC Court of Appeals Criminal Decisions

State v. Howard. Randolph County. Appeal of robbery with a dangerous weapon (RWDW).

At 12:50a, a woman was robbed at gunpoint of a laptop, camcorder, and wallet. At 4:00am, the victim's credit card was used to buy things at Wal-Mart. At 4:30a. 11 miles away, a break-in occurred at Daddy Rabbit's gun store. A concerned citizen followed the car of the gunstore break-in to a home and called police. Police conducted a consent search and found several bags of Walmart merchandise, bloody clothing, and property from both the robbery and the breakin. The Wal-mart purchases were made at 4:00am.

Defendant indicted for RWDW.

First, defendant challenges as plain error under 404(b) and 403 evidence of the break-in at Daddy Rabbit's store. This was properly admitted as "course of conduct" info, as necessary to explain the evidence and tell the complete story to the jury.

Second, was not plain error to admit lay opinion testimony for the officer to testify that "(1) that items located at Ebert’s apartment were purchased with a stolen credit card and that it appeared someone had attempted to hide them; (2) that subtotals on a Wal-Mart receipt indicated that the credit card was stolen because defendant would not have known how much money was available on the card and would have purchased a few items at a time to be sure the card would clear; (3) that there was blood on clothing found in Ebert’s apartment and in the Isuzu Rodeo automobile when no lab tests confirmed its presence; and (4) the broken wood panel piece found in the Isuzu Rodeo automobile matched the piece broken to gain entry to Daddy Rabbit’s “like a ‘puzzle piece.’”

Third, no error in allowing the detective to identify the defendant in the survellance video of Walmart. "The current national trend is to allow lay opinion testimony identifying the person, usually a criminal defendant, in a photograph or videotape where such testimony is based on the perceptions and knowledge of the witness, the testimony would be helpful to the jury in the jury’s fact-finding function rather than invasive of that function, and the helpfulness outweighs the possible prejudice to the defendant from admission of the testimony."

Fourth, no plain error in admitting the Walmart receipts and video under authentication or best evidence rules. "The trial court did not commit plain error in admitting the social security card, Wal-Mart photos, and receipts into evidence without full authentication and explanation as t whether or not the “best evidence rule” was complied with, because had the defendant objected to the admission of these pieces of evidence the State could have provided the necessary foundation and documentation relating to the “best evidence rule.”

State v. Jackson. Orange County. Appeal by two co-defendants for RWDW.

First, argue that judge erred in denying their motion to discharge the jury venire due to the race disproportionately underrepresenting minoriteies. To win this claim, you have to make a prima facie showing of racial systemic exclusion by showing:

(1) that the group alleged to be excluded is a “distinctive” group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in thejury-selection process.

There were 3 minorities in a venire of 60. Defense did not make any showing of the racial make-up of the county. As such, there was no showing that this venire was not fair and reasonable in relation to the number of such persons in the community.

State v. McDowell. Ashe County. Appeal of first degree murder conviction.

Defendant, 21, went on a trip to the mountains with a friend, to drink, play video games and shoot guns. Defendant drunkenly shot and killed his friend and buried him in some leaves. The police learned about the case when the defendant called his father and said he shot the victim. The victim had a .20 BAC. He was shot 41 times, inside the cabin. Defendant alleged he was drunk and shot in self defense. He also presented expert testimony about PTSD and cognitive impairment, as evidence of imperfect self-defense and diminished capacity.

First, no error in trial court refusal to instruct on diminished capacity. Defendant alleged he was entitled due to the PTSD, alcohol, and cognitive impairment evidence. However, no evidence that "cast any doubt on Defendant’s ability to premeditate, deliberate, or form the specific intent to kill necessary for guilt of first degree murder on the basis of malice, premeditation, and deliberation... the crucial inquiry that must be undertaken in connection with a request for a diminished capacity instruction is not the extent to which the defendant has offered any evidence of mental impairment; instead, the crucial issue is whether there is any evidence tending to show the effect of his condition upon his ability to premeditate, deliberate, and form a specific intent to kill." Defendant's experts testified and in reports stated that it was unlikely he lacked specific intent, given the number of shots.

Second, no error in officer testifying that he observed a "hair" on a wall of the house with tissue attached to it. Defendant objected because the evidence was not collected and is unavailable for testing. Held that this is not a valid basis for exclusions.

Third, no error in SBI agent testifying about the path of a bullet, under 703, based on the shape of holes. The fact that the agent testified from a picture, rather than viewing the actual scene, does not create error.

State v. Oates. Sampson County. State appeal of grant of motion to suppress.

Held that state failed to give proper notice of appeal. The trial court made oral ruling on motion on 12/14. State gave written notice. Then, on 3/22, the court issued a written decision.

To give proper notice in this circumstances, the state must do so orally at the time or in writing 14 days after "entry of judgment," which here means the written order. Dismissed.

State v. Richmond. Person County. Appeal of denial of motion to suppress.

During execution of a search warrant in a residence, defendant was ordered to the ground, cuffed, searched and drugs were found.

During execution of a search warrant, officers can detain anyone present on the scene and search persons if the items named in the warrant are not found on the property and could be concealed on one's person, NCGS 15A-256. Also, during detention at a warrant execution, an officer may pat down a defendant if he reasonably believes weapons may be present and are needed for his safety.

Here, there was reasonable suspicion, under the logic of, where there's drugs, there's guns.

Pat down was legal and officer immediately recognized it as drugs, thus could seize under "plain feel."

State v. Williams. Johnston County. Appeal of two counts of sex offense in a parental role and two counts of incest.

(1) Appeal on Miranda gounds. A conflict exists as to whether the defendant was in custody, so remanded for findings on that issue.

(2) Appeal on double jeapardy grounds. Unfortunately, not preserved.

Judge Bryant dissents on issue of whether there is a material conflict.

Wednesday, September 7, 2011

LA Times Covers Durham Debacle

The Los Angeles Times picked up the Tracey Cline story out of the N&O in an article titled, "First the lacrosse-players case, now more turmoil in Durham, NC"

Jury's out in Stepp

This morning, the jury in the Joshua Stepp case was charged and has begun deliberating.

Good article from the N&O on closings here.

Tuesday, September 6, 2011

Closing in Stepp

Closing arguments are underway in the case of Joshua Stepp. He is charged with first degree murder and sex offenses.

Two issues are presented to the jury:

(1) Did Mr. Stepp sexually assault his stepdaughter before killing her?
(2) Did Mr. Stepp premeditate and deliberate before killing his step daughter?

If the jury finds either of these occurred, it will convict Mr. Stepp of first degree murder. If not, he is only guilty of 2nd degree murder.

Mr. Stepp, a veteran, who admits the killing, denies any sexual conduct and alleges that the killing was due to PTSD, stress, and drinking and losing control when the child would not stop crying. He says it was not planned.

The jury will likely begin deliberating tomorrow.

N&O Series on Cline Continues

The News and Observer series, "Twisted Truth," an expose about Tracey Cline, the Durham County DA, continues.

Part III, "Information kept from defendants in two Durham Cases" is here.

Other related stories in the N and O:

"State Bar stays mum" and "Cline's arguments: One death, but two stories"

Monday, September 5, 2011

N&O Does Series on Durham DA

Tracey Cline, the elected DA of
Durham County
The News and Observer is undertaking a series this week on how District Attorney Tracey Cline has a pattern of hiding evidence and making "misstatements" in court. And the wake of dismissals and reversals that caused it.

Cline, who was one of Nifong's cadre, appears to have some of his traits.

Part I, "Cline's courtroom actions lead to dismissals, appeals" is here

Part II, " Misstatements in court, questions about evidence" is here.

More to come, I'm sure. Comments are as interesting as the story...

Sunday, September 4, 2011

2nd Degree Verdict in Stewart

Today, the jury found that Robert Stewart was not guilty of 8 counts of first degree murder, finding he lacked the capacity to form the necessary intent for 1st degree murder.

Instead, they found him guilty of only 2nd degree murder. This verdict saves him from facing the death penalty.

Friday, September 2, 2011

Jury Out in Stewart

The Jury began deliberating today on gulit/innocence in the Robert Stewart case in Moore County.

Story here.

More Legislation

A few more new laws I missed in the last summary:

New Crimes:

S.L. 2011-231: Makes it a class 2 misdemeanor for a person to hunt, fish, or trap on or remove pine straw from another’s land without written permission. Makes it a class 1 misdemeanor to remove pine needles or pine straw if there is a no trespassing sign.

S.L. 2011-232: Makes it a Class 1 misdemeanor for a person, with intent to defraud, to receive money as a result of cashing, depositing, or receiving a direct deposit of a public employee decedent’s retirement allowance under the circumstances described in the new statutes.

Meth Lab Responses in NC

S.L. 2011-240. Requires retailers to register all sales of pseudoephedrine.  Makes it a Class A1 misdemeanor for a retailer to knowingly and willfully violate; a  subsequent offense is a Class I felony. Makes it a Class 1 misdemeanor for a purchaser or employee to knowingly and willfully violate; a second offense is a Class A1 misdemeanor; a third or subsequent offense is a Class I felony

S.L. 2011-241: Makes it a class 1 misdemeanor for a person to aid or abet a student’s unlawful absence from a regional school. Makes it a class A1 misdemeanor for an applicant for employment to willfully provide false information on an employment application that is the basis for a criminal history check.

S.L. 2011-263: Makes it a class 2 misdemeanor to knowingly file a false and frivolous complaint against an employer relating to employer use of the E-Verify System (employers are required to check immigration status of its employees using the E-Verify System).

S.L. 2011-355: Makes it a class 3 misdemeanor for a person holding a "limited volunteer license" for doctors or physician assistants to exceed the limitations.

S.L. 2011-356: Makes it a Class I felony to assault a law enforcement, probation, or parole officer (14-33(c)(4)) and firefighter, emergency medical technician, medical responder, or emergency department personnel (14.34.6(a)), if the assault inflicts “physical injury," including “cuts, scrapes, bruises, or other physical injury which does not constitute serious injury.

2011-369: Makes it a class 2 misdemeanor to remove feral swine from a trap while the swine is still alive or to transport the live swine after that removal.

S.L. 2011-408. Makes it a class 1 misdemeanor to place an unauthorized campaign sign on a highway and makes it a Class 3 misdemeanor for a person to steal, deface, vandalize, or unlawfully remove a lawful political sign.

Amendments to other Crimes:

S.L. 2011-243: Allows off duty probation and parole officers to carry firearms.

S.L. 2011-326: Adds some stimulants to Schedule I, II, and III.

Stepp: Closings Set for Tuesday

Joshua Stepp, with counsel
Yesterday, the defense of Joshua Stepp, an Iraq war veteran charged with first degree murder, rested in Raleigh.

Closings are set for Tuesday. Before the jury will be whether Mr. Stepp is guilty of 1st degree murder or 2nd degree murder.

If convicted of first degree murder, Mr. Stepp could face death.

Press here.

Thursday, September 1, 2011

Closing Arguments in Stewart Case Underway

Closing arguments in the case of State v. Robert Stewart are presumably underway, as they were scheduled to begin at 9:15am.

Robert Stewart, on trial for his life.
The issues before the jury are whether Mr. Stewart is guilty (8 counts) of 1st degree murder, on a theory of premeditation and deliberation murder; guilty of 2nd degree murder (malicious killing without premeditation) or not guilty (on theory that his actions were unconscious, due to drugs he was on).

Judge Webb rejected submitting lesser crimes to the jury (voluntary or involuntary manslaughter). Judge Webb also made clear that the burden was on the State to convince the jury, beyond a reasonable doubt, that Mr. Stewart's actions were self-directed, rather than committed in an unconscious state created by Ambien.  Automatism is a well documented side-effect of Ambien. See some info on it here.

Presumably, closings will be completed today and the jury will be charged and begin deliberating tomorrow. If the jury returns a verdict of guilty of 1st degree murder, a sentencing hearing will begin to determine if he should receive death or life without the possibility of parole.