Monday, November 28, 2011

Senate Declares Itself Against Racial Justice in NC

Today, the Senate voted to repeal the Racial Justice Act. The Act provided the same tools against racial discrimination used in housing and employment discrimination to death row inmates. Under the law, if an inmate could show statistical discrimination in sentencing or in jury selection, his sentence could be reduced to life without the possibility of parole.

All North Carolina Democrats voted against the repeal, but the Republicans had there day in sweeping discrimination under the rug.

Two steps forward and three steps back...

Governor Purdue will have to decide whether to veto the legislation or not in the coming weeks.

Wednesday, November 23, 2011

Capital Murder Trial Continues in Stanly

In Stanly County, the state is putting on evidence in the case of William Robinson. If convicted, Robinson could face death.

Press here.

Monday, November 21, 2011

NC Court of Appeals, Criminal Decisions, November 15th

State v. Otto. Appeal of DWI conviction. Defendant appeals on grounds that the stop was illegal.

Officer stopped defendant leaving a Duck's Unlimited Banquet, because he had "heard there would be alcohol there." Defendant did not violate any traffic laws, but was weaving within her own lane (she did not cross any lines). Held: No reasonable suspicion for the stop. Judgment vacated and all evidence suppressed.

Judge Ervin dissents.

State v. Patel.  Appeal of 1st degree murder conviction.

Defendant and his wife were going through a divorce. His wife had told others of his abuse and threats to her and her fears that he was going to kill her.

On the day of her murder, she told people she was going to pick up items from the defendant's house. That morning, someone else called the defendant and he insisted they not come over. Defendant was shortly thereafter seen buying gas and a gas can. He called and cancel a scheduled tennis match. A few hours later, police responded to a brush fire and found the victim's body doused in gasoline. Defendant's alibi was that he was at South Point Mall eating at Sbarros, although he was not on the videos there and there is no Sbarro's in the mall. He  told police he bought the gas for a distressed motorist. He later told a detective, ""it was his wife's fate to die," and "if I go to jail, I go to jail, that would be my fate."

First, held this was sufficient evidence.

State v. Surrett. Appeal of convictions for second degree burglary, conspiracy, felony possession of stolen goods, felony possession of stolen firearm, and accessory after the fact to burglary.

Defendant and some friends, while high on crack, broke into a trailer and stole a bunch of stuff. Defendant may not have gone inside.

Judge instructed that the jury could convict on a theory of accessory before the fact, aiding and
abetting, or acting in concert. Defendant argues that this instruction could have resulted in a non-unanimous verdict, as both aiding and abetting and acting in concert required him to go inside, but not accessory. This was not a problem as defendant could not be convicted on all three and his presence was only relevant to the way the state proved the charge, not the resultant conviction.

Second, not plain error to fail to instruct on voluntary intoxication, even though the defendant was drunk.

Third, error to convict as a principle and for accessory after the fact. That count is vacated.

Fourth, court erred in sentencing on two separate possession of firearm charges. If both stolen at the same time and possessed at the same time, you can't get a different count for each gun.

Friday, November 18, 2011

Jury Sentences Danny Hembree to Death

Today, a Gaston County jury sentences Danny Hembree to death for killing a teenager.

Hembree was on a crack binge during the incident and had a long history of childhood physical and sexual abuse. His attorney argued that these facts mitigated the case in favor of a life sentence, but the jury was unswayed.

Mr. Hembree will be transferred to death row at Central Prison.

Tuesday, November 15, 2011

DA's Beg Legislature to Ignore the Evidence and Repeal RJA

Susan Doyle
Susan Doyle with the NC Conference of DA's is asking the legislature to repeal the RJA. A ground-breaking, in-depth study showed widespread bias in the capital cases. Most notably was that DA's were striking black jurors disproportionately in almost every case.

The DA's have fought scrutiny into the racial content of their decision-making--going as far as moving to strike a black judge from hearing the case (even though they made no such motions in other cases hearing RJA claims with white judges-- see story here).

Now, they seek a purely political out. Rather than having these important issues of discrimination in our systems of justice resolved by judges, based on facts, they'd like the legislature to give carte blanch to ignore the facts, and get back to ignoring racial discrimination.

Another sad day in North Carolina.

See press here.

Campus Police Act Valid, Says NC Supremes

On the 10th, the NC Supreme Court issued one criminal decision.

State v. Julie Anne Yencer.

Defendant was arrested for DUI on Davidson Campus. She challenged, arguing that hte Campus Police Act violates the establishment clause, by delegating police powers in the hands of religious schools. The trial court held the Campus Police Act unconstitutional.

Applying the Lemon Test, held that there was a valid secular purpose, that the primary effect did not advance or inhibit religion, and that it did not unduly entangle the government and religion. The decisions relies largely on the fact that much of Davidson's mission is education/secular related, rather than religious.


Tuesday, November 8, 2011

9 Jurors Selected in Stanly County

The guilt phase of the capital murder trial of William Robinson is approaching in Stanly County. Nine jurors have been seated. The state and defense are still selecting the remaining six (three jurors and three alternates).

Earlier this year, in the nursing home shooting case in Moore County, a special venire of Stanly County jurors rejected first degree murder and found the shooter, Robert Stewart, was diminished and convicted only of 2nd degree murder.

Press here.

Buncombe Jury Rejects 1st Degree Murder

In the case of Brandon Gross, last week a jury rejected 1st degree murder and found him guilty of second degree murder. He was sentenced to a term of years.

If the jury had convicted of 1st degree murder, his only possible punishments would have been death or life without parole.

Friday, November 4, 2011

NC COA Opinions, 11/1/2011


State v. Barrow. Appeal of 2nd degree murder conviction.

Shaken baby case.

First issue is whether judge appropriately submitted 2nd degree murder to jury, as defendant argues no malice presented in the case. Here, judge instructed on 1st degree felony murder (child abuse) and 2nd degree murder. Defendant argues that a finding of no 1st degree would mean no 2nd degree, thus inappropriate to submit. However, to provide 1st degree felony murder by child abuse, state has to show use of a deadly weapon. Thus, jury could reasonably convict on 2nd and not 1st. Thus, no error.

Second, court did not err in allowing a doctor to testify that the fatal injuries occurred between 8:00am and 1:00p. Defendant challenges this as unreliable under Howerton and Rule 702. Court did not rule on that issue, but simply found the error, if any, harmless.

Third, state's argument of proof of malice was that, given the child's young age, shaking him showed malice -- reckless disregard for human life. Defendant argues that, for this reason, the state couldn't then use the same evidence to prove the murder was aggravated by the aggravating factor of a young victim. Court held: Thus, the State's theory regarding malice is virtually identical to the rationale underlying submission oft he aggravating factor that the victim was "very young and physically infirm[]." There is, as a result, a reasonable possibility that the jury relied on Jace's age both in finding malice and in finding the aggravating factor, which would violate N.C. Gen. Stat. § 15A-1340.16(d)."

Judge Elmore Dissents, on the 1st degree / 2nd degree issue, and would remand for retrial only on 2nd degree murder.

State v. Cannon. Appeal of felony possession stolen goods and firearm by felon.

Defendant, drunk, threatened some family members. They took his gun from him, held him down, and police came. Turns out, the 4 wheeler he had come to the get together in was stolen. Charged and convicted for this, communicating threats, and possession of a firearm by convicted felon.

Insufficient evidence of mens rea for the stolen goods. To prove possession of stolen goods, the defendant has to know or have reasonable grounds to believe the item is stolen and the state must prove it is worth more than $1,000. State's evidence showed that a Honda sticker was put on the Suzuki 4-wheeler, which shows intent to conceal it's identity.  This was insufficient to show knowledge, as the cosmetic changes were minimal, defendant did not hide his ownership, and no reason to believe the defendant was the one who made the changes. Trial court erred in denying motion to dismiss. Vacated.

State v. Carter.  Appeal of sex offense case.

1) Held adequate evidence of anal penetration.

2) No error in court refusing to allow social worker to testify that victim was "that, during therapy sessions, victim was “overly dramatic,” “manipulative,” and exhibited “attention seeking behavior.” Held that she was not qualified to render such medical opinions.

3) Court's refusal to admit statement of victim to therapist that "“I know [Defendant] wouldn’t do it. I know he’s coming home” as substantitve evidence (under hearsay exception of statement for medical diagnosis) was not error. No clear evidence that the child knew, when the statements were made, that the play therapist was working as part of medical treatment.

4) No error in trial court, in instructions, referring to child as "victim."

5) No error in trial court refusal to order psychological evaluation of the victim.

6) Error by trial court in failing to instruct on lesser included of attempted sex offense (in one of the counts). There was varying evidence on whether or not penetration occurred, and was thus entitled to instruction on attempt. New trial on that count.

7) Court erred by forcing defendant to enroll in lifetime SBM as 1st degree sex offense is not an "aggravated offense" as defined by the statute.

State v. Demaio. Appeal of trafficking in opium and obtaining controlled substance by fraud.

Defendant pleaded guilty, then appealed, challenging the underlying basis in fact and the voluntariness of the plea. A condition of the plea was that he be allowed to appeal a prior motion. Unfortunately, that motion could not be appealed. As such, defendant may take back his plea, as he didn't get the benefit of his bargain.

State v. Jones.  Appeal of drug case, finding NarTest (test to ID drugs) does not meet Howerton standard--at least in this case. Nice post on it from another blog here.

Other Cases.

State v. Rivera. Appeal of RWDW. People were robbed with a stun gun (one lady was stunned).

At trial, an officer testifed that the "potential for serious physical injury or death [from a stun gun] is minimal,” and the overall potential for serious physical injury or death [from a stun gun] would be consistent with being struck with a hand or foot.” Defendant moved to dismiss, arguing they had not proved that a stun gun was a dangerous weapon.

A dangerous weapon is one that "could have threatened or endangered the life of the victim ." If it is not a firearm, this is a question of fact for a jury (as long as a jury could reasonably so find).

"Corporal Takano’s testimony tended to establish that a stun gun is not a dangerous weapon in and of itself when properly used under controlled conditions. Corporal Takano did not testify that stun guns can never be considered dangerous weapons. In fact, Corporal Takano stated that stun guns are considered “less than lethal” weapons simply because they fall somewhere between hands and feet and firearms on the “force continuum.”

"Defendant also points to the fact that the Raleigh Police Department tested Taser-brand X26 stun guns on many of its officers. However, Raleigh police officers were tased by experienced professionals in an environment designed to minimize the risk of injury.... Moreover, our courts have consistently held that an object can be considered a dangerous or deadly weapon based on the manner in which it was used even if the instrument is not considered dangerous per se."

State v. Stokes. Appeal of aiding and abetting 1st degree sex offense, felony child abuse by sexual act, and first degree sex offense. Evidence included child testimony and physician testimony confirming the physical evidence of sex.

First, sufficient evidence of felony child abuse by sex act when one child (victim) only mentioned vaginal intercourse, but other child said he saw the defendant use other objects. This discrepancy was for the jury (to prove child abuse by sexual act, state must prove a sex act other than vaginal intercourse).

Second, defendant forced another child to commit sex acts against the victim. He was charged with aiding and abetting such crime. Defendant argues that, since he forced the other child, that child's defense of duress protects him.  "We find defendant’s argument to be both offensive and absurd."

Third, any error from victim's stepfather testifying about things she told him wasn't prejudicial, given the overwhelming proof of guilt.

Last, court erred in sentencing defendant to lifetime satelite-based monitoring, because he has not been classified as a sexually violent predator, is not a recidivist, and the court found that he did not require "the highest possible level of supervision." Remanded for new sentencing on that issue.

State v. Sullivan. Appeal of three counts of robbery with a firearm and conspiracy.

Sufficient evidence of conspiracy, where co-defendant testified that the group decided to commit a robbery and went out and committed one.  Sufficient instruction as the jury was instructed on acting in concert and at least 2 co-defendant's names were included.

No error in refusing to submit lesser offense of common law robbery. While no evidence was presented that defendant personally used a gun, there was unequivocal evidence that the robbery involved a gun.

After sentencing, defendant filed an MAR for a new sentencing hearing, based on new evidence that could have been presented at sentencing--namely defendant's PTSD. Court held no error in court summarily denying the MAR. The court sentenced the defendant in the presumptive range. The court need not depart from the presumptive range, even if mitigating factors are proven. No error.

Finally, court erred in ordering $640 in restitution, as that amount was not supported by evidence at trial.

Tuesday, November 1, 2011

Mills Sentenced to Life

Mills (seated) with his legal team.
In Alamance, today, the state accepted a plea of guilty to two counts of 1st degree murder, in exchange for a sentence of life without the possibility of parole.

The plea reduces the number of pending capital cases to 4 (Danny Hembree in Gaston County- in guilt, and Larry Robinson in Robeson County, Brandon Gross in Buncombe County, and William Robinson in Stanly County, all in jury selection).