Thursday, October 27, 2011

NC Court of Appeals Criminal Decisions


State v. Surratt. Forsyth County. Appeal of felony child abuse by sexual act, indecent liberties, and first degree sex offense.

At a prior child welfare hearing, a judge ruled that the children "were not sexually abused." The state made a motion in limine to exclude any reference to this hearing, to which the defendant did not object. At trial, a SS social worker testified that they investigated allegations of sexual abuse and removed the children from the home.

Held: It was ineffective for counsel to allow this testimony in without making the jury aware that the removal was based solely on neglect, not sexual abuse. This was not harmless, as the case rested solely on the child's testimony and there was no physical evidence of abuse. Further, testimony that DSS had "substantiated" the allegations prejudicially and inappropriately bolstered her credibility.

New Trial.

State v. Sweat. Buncombe County. Appeal of first degree sex offense and sex offense with a child.

First, here is the defendant's handwritten confession.

"Brickyard Road. She pulled out my p-e-n-d-s and sucked it. I said ―no but she wanted to t-y-e it. She l-e-n-k-s it. I had s-a-i-n-d ―no, but she want to, so she did it. For s-u-o-c-d. That happened two times. She put my p-l-a-n-s in her butt. B-e-a-c-k part we play on the bed and [Tammy] put her hand down in my pants, pull it out and t-y-e it or can I s-a-n-d, but she want to. I know she it out again. I s-a-i, ―This is not r-in-t' to her. She s-u-i-n-d things. She tried to put it in her butt that day[.]"

Defendant argues that there was insufficient evidence of sex offense with a child--the offense was based on fellatio. Defendant argues under corpus delicti, the only evidence of this offense is his confession and thus it must be dismissed. In non-capital crimes, you can convict on confession alone "if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime." Here, the victim did not deny fellatio and evidence that she told a DSS worker this happened came in (even though it only came in as corroboration, and didn't corroborate the in-court testimony...) Further, defendant had ample opportunity to commit these crimes.

Second, the jury, however, was improperly charged on the count of sex offense with a child. Defendant hasd four counts of sex offense. The court instructed on all four that they could find defendant guilty if they found he engaged in anal sex and/or fellatio with the child. There was evidence of mulitple instances of anal intercourse, but only of two instances of fellatio. As such, it was error and misleading to instruct on fellation on all four counts. New trial on the two counts of sex offense with a child.

Other Cases. 

State v. Holloway. Wake County. Appeal of habitual misdemeanor assault and habitual felon conviction. Defendant convicted for assault on a female. He had prior assault convictions, so was convicted for the separate offense of habitual misdemeanor assualt, a class H felony. He was then sentenced as a habitual felon, due to his three prior felony convictions, as a class C felon.

The upshot: his AOF, punishable by a maximum of 150 days, was converted to a C felony and he was sentenced to 108 months (9 years).

First, the habitual misdemeanor statute reads: "“[a] conviction under this section shall not be used as
a prior conviction for any other habitual offense statute." Defendant argues that it thus couldn't be used for a habitual felon--that the legislature couldn't have meant to turn a misdemeanor (simple assault on a female) into a class C felony. Not so, says the COA. Because habitual felony is a sentencing mechanism, not a seperate offense, it is not a "habitual offense statute."

"While defendant’s arguments are well taken, we note that the primary purpose of recidivist statutes such as these are “to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.”

State v. Pierce. New Hanover County. Appeal of possession of firearm by felon (PFF), 2nd degree murder, flee to elude arrest resulting in death, and possession of marijuana with intent to sell.

During a traffic stop, defendant fled and a high speed chase ensued. During the chase, an officer who was on the radio but not in direct pursuit swerved to avoid debris on the road (unrelated to the chase), lost control, went over the median, and died when he crashed into a tree. Once they caught the defendant, they charged him with drugs and a gun found in the car and second degree murder.

First, defendant challenges the Second Degree Murder conviction. The elements of 2nd degree are

1. defendant killed the victim;
2. defendant acted intentionally and with malice; and
3. defendant’s act was a proximate cause of the victim’s death.

First, the "very act of fleeing from the police certainly constitutes malice." Here, he fled, sped, ran lights, etc, all with knowledge that injury or death could result and manifesting depravity of mind and disregard of human life.

Second, even though the officer was not in direct pursuit and was, in fact, miles away, "the harm that befell him – was [not] so far beyond the circumference of Pierce’s reckless actions as to absolve Pierce of liability for Officer Matthews’ death."

Third, no error in refusing to allow the defendant to put on evidence and argue that "Officer Matthews was negligent in speeding to the pursuit and, therefore, was the cause of his own death," because contributory negligence has no place in the law of crimes.

Second, no error in the convictions for PFF.

Two guns were found: one on the highway and one during a search of defendant's house.

In the house, it was found in his closet, alongside paychecks with his name on it and other papers with his name on it. Further, his wife said he was "holding it for his brother." Sufficient evidence to prove constructive possession.

The other one was found on the highway. There were 3 people in the. Insufficient evidence to show that defendant, and not another occupant, owned that gun (or that it even came from the car). Vacated.

Third, defendant argues that a 1994 robbery was improper 404(b) evidence. In that case, defendant fled on foot and a co-defendant was shot and killed by police. It was relevant to knowledge because it showed prior evidence of flight and the dangers inherent in flight.

State v. Ross. Rowan County. Appeal of two counts of attempted first degree murder, two counts AWDWIKISI,  one count attempted RWDW, and one count of AOF.

First, defendant argues that the confrontation clause was violated when, at trial, one of the victim's testimony at a probable cause hearing and prior statements to law enforcement was admitted. 6th amendment not violated where declarant unavailable when defendant "had a prior opportunity to cross-examine the declarant."

"Defendant contends, however, that he had no meaningful opportunity to cross-examine Ms. Besies at the probable cause hearing because the various charges had not yet been joined, defendant's lead trial counsel had not yet been appointed, and his counsel at that time had not yet had an opportunity to review all the discovery... [O]ur courts have never held that discovery must be complete for a cross-examination opportunity to be adequate. Here, defendant was represented by counsel at the probable cause hearing (who was one of his trial counsel), he had the same motive to cross-examine Ms. Besies as at trial, and his counsel did in fact cross-examine Ms. Besies."

Statements to the law enforcement officers were properly admitted for corroboration, thus not affecting confrontation rights.

Second, it was error for the judge to submit aggravating circumstances to the jury not included in the indictment (even though notice was given to the defendant of the state's intent to submit them). Thus, trial erred in sentencing as aggravated. Remanded for resentencing.

State v. Watlington. Rockingham County.  Appeal of conviction for habitual impaired driving and being a habitual felon.

Defendant moved to proceed pro se during the habitual felon sentencing hearing. Defendant argues that the court erred in allowing him toe waive counsel without conducting a proper inquiry under 15A-1242. Court failed to conduct, so new trial on habitual felon. The fact that defendant clearly indicated he wished to proceed pro se and was familiar with the court system does not change the duty to comply with the inquiry.

Wednesday, October 26, 2011

Isaam Chaplin Case Continued

On Tuesday, the Chaplin case was continued in Guilford County, due to newly discovered evidence. The press is not reporting what this is, but the state asked for jury selection to be stopped and seated jurors to be sent home.

No word on when the case will be heard.

Tuesday, October 25, 2011

Two More Capital Murder Trials Begin

In Guilford County, jury selection began Monday in the Isaam Chaplin case. He is accused of robbing a brinks truck outside an Old Navy and shooting and killing the driver. Prosecutors have told the press they think they will have a jury in a week. Press here.

In Stanly County, jury selection is scheduled to begin Wednesday in the case of William Robinson. Robinson is charged with killing a store clerk. Press here.

Jury selection continues in the cases of Larry Robinson, Robeson County and Dennis Mills, Alamance County.

Danny Hembree, with his lawyers
Last Wednesday, evidence began in the guilt phase in the case of Danny Hembree, Gaston County. Jurors heard Mr. Hembree's confession this week--a confession he subsequently recanted. In the recording, Hembree describes killing one woman with a plastic bag so she wouldn't date black men and another "because he wanted to." Asked why he did it, Hembree said he felt both women were prostituting themselves for drugs. Press here and here.

Monday, October 24, 2011

Moore County Prosecutor's Decisions Cost State Big

There's been some press lately about the Robert Stewart capital murder case and how much it cost. Apparently, there has been reporting that it cost the taxpayers $550,000.

This figure comes from the court side and the defense side. The articles have largely left out the cost from the state's end--in law enforcement and district attorney assets that could have been spent doing something other than this case.

District Attorney Krueger
But nonetheless, there is an even bigger story not being told here. That figure, of $550,000, was driven almost entirely by District Attorney Maureen Krueger's decision to seek death. As a general matter, cases like this can be resolved at any point by plea. The trial was almost certainly moved by the state's refusal to negotiate. Further, the need for it to be a capital trial, versus a non-capital trial, was entirely within the state's discretion.

The story we're not being told is that that $550,000 figure is largely attributable to poor state decision-making. I mean, they didn't even get a 1st degree verdict out of this case. Is anyone surprised? People simply do not walk into a nursing home and shoot a bunch of old people when they are in their right mind...

I imagine the cost of this case could have been avoided by an early plea to the same result--a lifetime in prison--that came at the end of this trial. That decision was one that rested with the state.

This experience is repeated again and again across the state. A 2009 study by Duke Professor Phil Cook found that N.C. could save more that $11 million a year if the state stopped seeking death. And that's just in defense costs.

This doesn't include prosecution, law enforcement and court resource--all of which could be used to have more cops on the street preventing crimes and more prosecution of other crimes.

NC Court of Appeals Criminal Decisions, 10/4/2011


State v. Fox. Harnett County. Appeal of felony stalking conviction.

Defendant was convicted in 2009 for felony stalking for incidents occurring from 3/5/2009 to 4/7/2009. . From prison, he wrote a threatening letter to the victim and, after he got out, went to her house and threatened her some more. He was indicted for incidents occurring from 3/5/2009 to 2/8/2010 and convicting for stalking again. Appeals.

Held: conviction violates the double jeopardy clause.  The 2010 indicted offense includes conduct from the 2009 conviction which, on its own, is sufficient to prove violation. This subjected defendant to real jeopardy from a prior conviction. "Because the time periods of the “course of conduct” for both indictments overlapped, the same acts could result in a conviction under either indictment." Therefore, they were the same offense. Vacated.

Other Cases.

State v. Bowden. Mecklenburg County. State appeal of non-suit.

Defendant was charged of breaking and entering under an acting in concert theory. He was found on the scene and ran from police, after another man was found on the scene with items from a house in his hands and ran from the cops (he got away). After the jury returned a verdict of guilty, the judge dismissed on a motion notwithstanding the verdict. The state appeals.

The standard for granting a motion notwithstanding the verdict is if there is not substantial evidence for each element of the offense. "If the evidence is sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed."

Held that the court did not err in dismissing the charges.  "A defendant’s presence at the scene of a crime is not evidence of his guilt, even if the defendant is in sympathy with the criminal actor and makes no attempt to prevent the crime...In sum, the only evidence that could link Defendant to the break-in was (1) his presence in the back yard of the home just after the unknown man was seen carrying stolen property in the area, and (2) his flight from the crime scene when he saw the police officers."

State v. Collins. Craven County. Appeal of conviction for possession of marijuana and paraphernalia.'

First, the major piece of evidence in the case was the video from a controlled buy conducted by an informant, who was not available at trial. Defendant challenges that this was not properly authenticated. An officer testified that he rigged it up before and after. This is proper authentication.  The fact that persons on the video are unavailable is irrelevant, because the evidence was not offered for illustrative purposes, but rather for substantive purposes. If offered for illustrative purposes, a witness has to say, "this is a fair and accurate representation" of what something looks like. If offered for substantive purposes, all you have to establish is that it is what it says it is-- here, a video of a drug transaction.

Second, no plain error in officer saying that the defendant is the guy on the video. Here, officer had significant prior dealings with defendant and was in better position than the jury to give the opinion that it was the defendant on the video (thus meeting the test for a lay opinion: rationally based on perception and helpful to the jury).

State v. Garcia.  Wake County. Appeal of conviction for trafficking.

First, during sentencing, the jury requested to review a witness's trial testimony. The court has discretion to make this decision. After hearing the request, the following exchange occurred.  court stated

COURT: The jury has sent out a request for a copy of Officer Mendez’s testimony. I intend to call them in and tell them it is their duty to recall the testimony in this case, it is not prepared in a form that can be submitted to them at this time."

DEFENSE: Would you consider letting them know that it can be read to them.

COURT: I don’t intend to read it to them or have it read to them. It’s their duty to recall the evidence that they have heard. It’s not prepared in a form that can be submitted to them, so I’ll just tell them they need to recall the evidence.

COURT: (to Jury): [Y]ou have indicated in this note that you’re requesting a copy of Officer Mendez’[s] testimony...That is not prepared in a form that can be submitted to you. The Court Reporter takes it down, but she is taking it down for later typing everything, but it’s not done immediately, so it is not in a form that could be submitted to you. It is your duty to recall the evidence based on your recollection of the evidence that you have heard and the testimony that you have heard in this case.

Under State v. Ashe, if the court believes it is unable to provide the transcript to the jury, it is not exercising it's discretion, and a reversal is required. If the court is refusing to provide it by exercising it's discretion, then no error occurs.

COA held that, "While the trial court’s comments might have misled the jury about the availability of the transcript, it is the trial court’s understanding we consider here, not that of the jury. The court’s remarks to defense counsel indicate its awareness that the jury request could be granted by reading the transcript. Thus, the court was aware it had the ability to grant the jury request, but exercised its discretion in declining to do so."

Second, defendant challenges denial of motion to suppress. During a warranted search, while interviewing defendant's wife, the police found drugs. At that point, the defendant, admitted the drugs were his. He challenges, saying that the he was unlawfully in custody. The lower court ruled that he was lawfully detained ancillary to the execution of a warrant. "“An officer executing a warrant directing a search of premises not generally open to the public . . . may detain any person present for such time as is reasonably necessary to execute the warrant...Further, officers may use handcuffs to detain the occupants of a residence being searched and may question them, so long as the questioning does not extend the length of detention beyond that required to complete the search." Here, although defendant was cuffed, read his rights, and taken to another room for questioning, this does not make it an unlawful arrest, but rather a legal detention during execution of a search.

State v. Hester. Bladen County. Appeal of AWDWIKISI, first degree murder, and common law robbery.

First, no error in denial mistrial during capital sentencing hearing, when it was learned that a juror overheard the defendant's family disparaging the guilty verdict and discussed it with other jurors. Another juror talked with a spectator about the case and was removed. First, no evidence shows the misconduct affected guilt. It was only during sentencing deliberations. No prejudice as to sentencing, as jury returned a verdict of life without parole (only options were LWOP and death).

Second, no error in using short form indictment (as the courts have repeatedly ruled).

State v. Jackson. Stanly County. Appeal of several counts of sex offense.

The child testified by closed circuit television, as allowed under N.C.G.S. 15A-1225.1. Defendant argued that they didn't meet the statutory test and that it violated Crawford.

To allow closed-circuit child testimony, the court must find (1) "the child witness would suffer serious emotional distress, not by the open forum in general, but by testifying in the defendant's presence."; (2) “the child‖s ability to communicate with the trier of fact would be impaired.” At the evidentiary hearing, a psychologist testified that this test was met. Further, no confrontation violation, as the right to be in the physical presence of the witness must give way to protect child sex offense victims. Defendant had the ability to cross and confront the witness via video.

State v. Jones. Martin County. Appeal of AOF, misdemeanor breaking and entering, and assault on a child.

Basically, a guy broke into a house and made some odd statements to some children and assaulted one, while trying to make her touch his chest. At school, the children looked at the on-line sex offender registry with the principal at a few pictures then identified defendant as the perpetrator.

Defendant challenges the photo array and in-court ID (as plain error) on the theory that the initial array was unduly suggestive. "Identification evidence violates a defendant’s due process right where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification."

In making such a determination, the courts look at five factors to determine "likelihood of irreparable misidentification":

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.”

And two more on whether the pretrial ID was suggestive:

(1) “Whether the accused is somehow distinguished from others . . . in a set of photographs”; and
(2) “Whether the witness is given some extraneous information by the police which leads her to identify the accused as the perpetrator of the offense.”

Held: First, principal was not acting as an agent of the state, because he was not acting under his public authority--principals do not engage in the competitive enterprise of ferreting out crime. "Rather, Principal Hart’s actions were more akin to that of a parent, friend, or other concerned citizen offering to help..." Even if the ID was impermissively suggestive, that doesn't rise to a 14th violation here because there is no state action. Second, even if it did, this procedure was not unnecessarily suggestive.

Steelman concurs separately. Believes that they shouldn't have even heard the constitutional issue, despite the fact that it involves the admissibility of evidence.

State v. Jordan.  Caldwell County. Appeal of 1st degree murder conviction.

Major issue is the defense motion to suppress defendant's confession. 

Defendant told police: "I need my rights. I ain’t signing my away right,"... "I know but that ain’t right. Ya’ll ain’t even wanting to question me man without a lawyer present. My people’s already getting me a lawyer cuz." He later signed a waiver and confessed.

Held: These statements were too ambiguous to constitute an assertion of the right to counsel.

Second, the video tape of the interrogation was of poor quality. The jury was given a "transcript" and instructed that it was only for corroboration and their memory of the tape should serve as reference for evaluating the transcript. This might have been error, since the tape was of poor quality, but in any event it was harmless, as other witnesses said that defendant said he was going to kill the victim, that he said he did kill the victim, and eye-witnesses said they saw him kill the victim.

State v. McDonald. Cabarrus County. Appeal of cocaine possession conviction.

Defendant challenges admission of lab report on grounds that the testing was not conducted by an accredited lab and the procedures were not sufficiently reliable. This was not plain error. Expert had an adequate background. The lack of testimony on accreditation or approval by the SBI of procedures used, alone, did not make 702(a) unreliable.

Note: Under the new Rule 702(a), expert opinions can come in if the expert is qualified and the testimony is supported by reliable principles and methods, reliably applied to the facts--effective 10/1/2011 and not relevant to this case.

State v. Sims. Buncombe County. Appeal of indecent liberties conviction.

At a target, defendant went up to a girl three times: (1) he crouched down and looked at her legs, (2) fell into her and wrapped his hands around her belt area, then apologized, and (3) knelt down 6-8 inches from her legs. Other testimony came in of other people at target whose legs defendant had commented about or asked to touch. Defendant admitted that he had an obsession with women's legs.

Held: Sufficient evidence for an indecent liberties conviction, including element that touching was for sexual gratification/desire.

State v. Teague. Randolph County. Appeal of two counts of attempted 1st degree murder, larceny of a motor vehicle and RWDW.

 First, sufficient evidence for attempted murder. Requires proof of "(1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing.”

Defendant bought some binoculars, went to victim's house, laid in wait watching them,  when they went to bed he broke into their house, and then cut them both in the neck multiple times while they slept. This is sufficient evidence of premeditation/deliberation and specific intent to kill.

Second, no error in state's closing arguments. State's argument was that "There are three kinds of people in the world: there are sheep, there are sheepdogs, and there are predators...Predators are the ones who come in the middle of the night and they slit your throats and they try to kill you because they want what they want, and they want what you have, and they’re upset because life hasn’t treated them fairly. But that’s no excuse for them to be a predator. Sheepdogs. Those are the people that protect the sheep. Those are the people who are willing to stand up and do what’s right. They serve in law enforcement, they are firefighters, they are the people who protect our communities and our citizens from people like Charles Teague. Ladies and gentlemen, each and every one of you, for the purposes of being here today, is now a sheepdog."

Defendant argues this is an improper argument for calling on jury to "protect the community" and name-calling. Not plain error.

"We ... reiterate that comparisons between criminal defendants and animals are strongly disfavored but, as the State has a wide latitude in jury argument, hold that the State’s closing argument did not rise to the level of being so grossly improper as to require the trial court to intervene ex mero motu.”

Friday, October 21, 2011

Mill Pleads Guilty in Alamance, State Still Seeks Death

Yesterday, Dennis Mills, against advice of counsel, pleaded guilty to a double murder in Alamance County. They are in the process of picking a capital jury.

His lawyers had planned to offer the defense of insanity. His plea makes him subject to, at the minimum, a life in prison sentence.

A jury will still have to be picked and a trial held on whether he should live or die.

After 8 days of jury selection, only 2 jurors have been selected. The selection and trial could last for weeks or even months. The state could end this expensive process at any moment by declaring the case non-capital and asking the judge to sentence Mills to life without parole.

Press here.

Tuesday, October 18, 2011

Capital Trials Continue

Three on-going capital cases are in jury selection around the state.

Dennis Mills, in Alamance County, is charged shooting two men. He is putting on diminished capacity and insanity defenses. It is in the second week of jury selection. Press here.  At the end of the first week, only one juror had been selected.

Larry Robinson, in Robeson County. I cannot find any press or information about this case.

Danny Hembree, Gaston County. Hembree is charged with killing two women. As of last Wednesday, 11 jurors had been seated. Press here.


In Stanly County, the capital murder trial of William Robinson has been set to begin on October 26, 2011. He is charged with shooting a store employee. Press here.

Friday, October 14, 2011

NC Supreme Court Criminal Decisions, 10/7/2011

Conner v. Council of State. See full post, here.

State v. Edwards. Guilford County.  Digged

State v. Hill. Buncombe County. Appeal of robbery with a dangerous weapon conviction. Aff'd.

Sufficient evidence of RWDW where witness to the robbery did not make a clear statement that the defendant had a weapon, where other evidence came in, without objection, of hearsay statements that defendant had a knife during the robbery. "Moreover, even assuming, arguendo, that Detective Taylor’s testimony that Mr. Cole was robbed by a man with a knife was incompetent, “all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on” a motion to dismiss"

State v. Marler. Haywood County. Digged.  

State v. Moore. Buncombe County. Appeal of restitution award. Rev'd.

Reversing court of appeals and finding insufficient evidence for a restitution award. The only evidence of the value of the damage was a statement of a witness at trial that "she had obtained an estimate for repairs to the house, which totaled “[t]hirtysomething thousand dollars.” This was not sufficiently definite evidence for a restitution award (which was submitted as an unitemized worksheet listing $39,332.49 as the damages).

The general rule for restitution is this: "In applying this standard our appellate courts have consistently engaged in fact-specific inquiries rather than applying a bright-line rule. Prior case law reveals two general approaches: (1) when there is no evidence, documentary or testimonial, to support the award, the award will be vacated, and (2) when there is specific testimony or documentation to support the award, the award will not be disturbed."

The court of appeals vacated. Because their was some evidence, it should have been remanded for less vague evidence.

State v. Nickerson.  Orange County. Reversing lower court decision (post on lower decision here).

Issue is whether unauthorized use of a motor vehicle is a lesser-included offense of possession of stolen goods. An offense is a lesser included if the lesser has no additional elements than the greater.

S.C. ruled that the COA wrongfully ruled that if the general elements of the greater crime could cover the more specific elements of the specific crime, then they are the same element.

Unauthorized Use has an essential element that the taking occur of an motor vehicle. Possession of stolen goods has just a general element of a stolen object. As such, the court held that the unauthorized use had an additional element and is thus not a lesser-included.

Robert Lee Pasteur
State v. Pasteur. Franklin County. Appeal of COA reversal in 1st degree murder conviction (post on lower decision here.) Conviction was vacated below on insufficient evidence, on the basis that one drop of blood on a shoe and being seen on a highway in the vicinity around the time of the victim (his wife)'s disappearance, without more, was insufficient to show guilt.

Supreme Court upheld the decision, in a per curiam decision, with a vote of 3-3. "Accordingly, the decision of the Court of Appeals is left undisturbed and stands without precedential value."

Here's some old press on this case. This man was standing on the finest line between absolute freedom and life without the possibility of parole. Yowzah!

Tuesday, October 11, 2011

Capital Murder Trials in Jury Selection

Three cases continue in jury selection around the state: Dennis Mills in Alamance County, Danny Hembree in Gaston County, and Larry Robinson in Robeson County. No news.

High Court Rules in Council of State Litigation

Last Friday, the N.C. Supreme Court ruled for the state in Conner v. N.C. Council of State.

In Conner, a group of death row defendants challenged the procedure by which the execution protocol was enacted. N.C. law gives the responsibility to the Council of State--a highly political body consisting of the Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and the Commissioner of Insurance--final authority to adopt execution protocols.

The North Carolina Administrative Procedures Act (APA) generally applies to the promulgation of rules and regulations by state administrative agencies. For example, if the Department of Health Service Regulation wants to change the rules for how clinical laboratories conduct analyses, they must follow the APA. The APA basically requires that, before a rule or regulation is made, that notice is given to stakeholders, who can then provide comments, and the agencies considers those comments when making a decision. So, in the above example, the DHSR would give notice of how they were going to change the lab regulations, then patient advocacy groups, laboratories, doctors, etc. could provide their thoughts, then the DHSR would consider those comments, make appropriate changes, then issue the regulations.

In January of 2007, the Council of State placed a proposed execution protocol on it's agenda. Interested parties sent a letter to the Council asking them not to use a BIS monitor (which monitors consciousness), as it was not approved by the FDA for use in executions and might lead to unnecessary suffering. The Council of State refused to consider this and proceeded to adopt the protocols without notice and comment. 

The Supreme Court resolved this controversy (which had worked it's way through the administrative hearing and court process) by finding that the decisions of the Council of State are not subject to the APA. The court found that, while the Council of State by definition is an administrative agency, "its constitutional creation,
composition, purpose, and functions set it apart from agencies created and defined by statute."


So, what does this mean for the Death Penalty in North Carolina? It removes one of the major barriers to the state beginning executions. This litigation was just part of a larger controversy about whether or not North Carolina's lethel injection protocol is cruel and unusual punishment. That larger issues is still working it's way through the courts. N.C.'s temporary stay on execution is still on....for now.

Thursday, October 6, 2011

Two Capital Murder Trials Slated for October Plea Out

Two cases slated for capital murder trials to begin next week both pleaded guilty and were sentenced to life without parole.

Saadi Williams, charged in a Vance County robbery murder in 2008 of the Williamsboro Grocery, was sentenced on Monday. Press here.

Barney Gamble, charged in a Johnston County, pleaded guilty of murdering a couple in their home and lighting their house on fire.  "In making this decision, my staff and I took into consideration the concern of the Beasleys’ family and their wishes for closure," Susan Doyle, the elected DA, said in a statement. Press here.

Wednesday, October 5, 2011

Capital Murder Trial to Begin Next Monday

In Alamance County, Dennis Mills will be tried for his life, starting on Monday.

Mills will apparently be asserting an insanity, diminished capacity, and voluntary intoxication defense. See press here.

Jury Selection Begins in Gaston County Case

Danny Hembree, Jr.
The capital murder trial of Danny Hembree, Jr., has begun. Hembree is charged with the murder of Heather Catterton. She was 17. Her body was  found near a bridge in Clover, S.C., on Oct. 29, 2009.

Hembree is also charged with 2 other murders. These are still awaiting trial.

Jury selection began this week.  If convicted, he could be sentenced to death.

Monday, October 3, 2011

NC Court of Appeals Criminal Decisions (9.20.2011)

State v. Burgess. Yadkin County.

Defendant convicted for kidnapping and crime against nature. The court, in sentencing, required him to enroll as a sex offender. Held: neither kidnapping, nor crime against nature is a "reportable conviction" under NCGS 14-208.6.

State v. Cortez. Johnston County. Case on sureties and bond forfeiture. Held that Clerk failed to perfect the forfeiture.

State v. James. New Hanover County. Appeal of cocaine possession conviction.

Defendant arrested for possession of cocaine. At the police statement, he ate the suspected cocaine. Officers testified at trial that the substance was cocaine based on visual inspection and based on a presumptive NIK test. Normally, the substance would be sent off to the lab for confirmatory testing. During processing, "Defendant asked the magistrate, “How are they charging me with the crack, when I ate it? Or possessing the crack when I ate it?”

First, while generally it violates 702 (as insufficiently reliable) for officers to testify based on NIK testing or visual inspection about the substance of a drug, the defendant forfeited his right to keep that evidence out by eating the suspected cocaine.  "Under the unique circumstances of this case, however, we conclude Defendant forfeited his right to challenge the admission of this otherwise inadmissible testimony."

State v. Trogdon. Randolph County. Appeal of 2nd degree murder.

1) The death certificate, autopsy report, and expert witness described the death as a "homicide." Defendant challenges this as an inappropriate opinion on an ultimate issue. This was not objectionable and merely was an opinion based on evidence that the death was not an accident, a perfectly legitimate opinion.

While an expert cannot "testify regarding specific legal terms of art including whether a defendant deliberated before committing a crime. Additionally, a medical expert may not testify as to the "proximate cause" of a victim's death," here "homicide" simply meant, not an accident, not an opinion about whether it was a technical "homicide" in the sense of 2nd degree murder.

2) An expert testified that, in her opinion, bite marks made on the victim's arm were made by the defendant.

Bite mark identification is the epitomy of junk science. As the National Academy of Sciences reported in its 2009 report "The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others."

Nonetheless, this was not plain error. 

Sunday, October 2, 2011

Pittman Convicted of 1st Degree Murder

In Bertie County, a jury found Antwan Pittman guilty of the murder of Taraha Nicholson. He was sentenced to life without parole.