Tuesday, December 27, 2011

NC COA Decisions, 12/20/2011


State v. Abbott.  New Hanover County. Appeal of larceny by employee conviction.

Trial court erred by allowing state to amend indictment by deleting the word "incorporated." The victim was an unincorporated association. This change was a substantial alteration of the indictment. This was not waivable. Vacate the judgment.

State v. Brown. Henderson County. Appeal of denial of motion to suppress evidence of impairment in a DWI stop. Defendant alleges stop was illegal.

Held: stop was illegal. Officer saw defendant's car pulled off on the side of the road. He heard some yelling and car doors slamming. Then, the car accelerated rapidly back onto the highway, but did not speed. This did not give reasonable suspicion to stop, based on his belief that they might be suspects in a robbery.

State v. Lynch. Chatham County. Appeal of RWDW and 2nd degree kidnapping.

Trial court erred in refusing to admit certified copies of the complaining witnesses criminal record to be used by the defendant to impeach the eye-witness. Rule 609(a) permitted defense to impeach the victim. This error was prejudicial, since defendant was impeded from impeaching the state's key witness, who had misrepresented his criminal record before the jury.

Admitting priors under 609(a) is not in the discretion of the trial court. New trial.

Judge Bryant dissents, finding no prejudice due to eye-witness admitting to these types of offenses on the stand.

State v. McDowell. Cleveland County. Appeal of breaking and entering into a motor vehicle.

To prove b&e of a motor vehicle (14-56), state must prove that there was a breaking and entering, without consent, into a motor vehilce, containing goods of value, with the intent to commit a larceny or felony within.

The state entered no evidence of anything of value in the car that was not affixed, thus insufficient evidence.

Other Cases.

State v. Clowers. Wake County. DWI appeal.

First, defendant challenges admission of intoxylzer prtintout and affidavit from analyst on hearsay and foundation grounds. Defense counsel only made a general objection and it was thus ineffective. Error is lost.

Second, sufficient evidence (readout of .15 BAC).

Third, no error in refusing to give an autonomism or unwillfulness instruction, where no evidence to support.

State v. Crawley. Durham County. 1st degree murder conviction.

First, defendant challenges admission of cell phone records without sufficient authentication. A custodian of records from the cell company produced the records and said they looked like his companies records, but he did not produce the actual CD with the records on them. Court found this sufficient to authenticate from circumstantial evidence.

Second, no error in allowing jury, in deliberations, to hear parts of tapes entered into evidence that were not played for them during the case. No error and any failure to the court by not providing an opportunity for the defense to re-open and enter rebuttal evidence was waived, as defense did not make such a request.

State v. Johnson. Currituck County. Appeal of cocaine trafficking conviction.

During a traffic stop, police find cocaine in the backseat of a vehicle. Three people are in the car; defendant is the only person in the back seat. Also found a rock in defendant's sock. Defendant made a run for it and, on the way, dropped another bag of cocaine. A co-defendant testified at trial that he and defendant were drug dealers and it was tehre drugs.

1) Sufficient evidence of constructive possession (items found in close proximity to defendant, other drugs found on defendant's person, and co-defendant testified they were selling it together).

2) No error in court failing to intervene ex mero motu when the prosecutor said:

"Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you that when you try the devil, you have to go to hell to get your witness. When you try a drug case, you have to get people who are involved in that world. Clearly the evidence shows that Robert Hall was in that world. He’s an admitted drug dealer and admitted drug user."

Court found that the prosecutor wasn't improperly calling the defendant a devil, just making an analogy.

3) Court refuses to rule on Harbison issue (attorney admitted guilt to RDO in closing) and leaves it for being raised in an  MAR.

State v. Mabry. Stanly County. Appeal of re-sentencing.

Court failed to find 4 mitigating factors. COA found they were not uncontradicted and manifestly credible, thus no error.

State v. Self. Buncombe County. Appeal of satellite-based monitoring order for life (SBM).

Held that Rules of Civil Procedure do not apply to SBM hearings, even though they are a civil regulatory scheme. Defendant had objected that there was no subject matter jurisdiction as no proper complaint was brought.

Thursday, December 22, 2011

Death Penalty Trials 2011, Year in Review

Not Guilty of 1st Degree Murder:
Michael Mead, Mecklenburg County (acquitted)
Robert Stewart, Moore County (convicted of 2nd degree murder)
Brandon Gross, Buncombe County (convicted of 2nd degree murder)

Life without Parole by Jury:
Danny Thomas, Columbus County
Shelton Mills, Pitt County
Joshua Stepp, Wake County
Larry Robinson, Robeson County

Less than Death by Other Means 
Melba Slaydon, Randolph County (plea to 1st degree during jury selection)
Ebony Watson, Lee County (plea to 2nd degree during jury selection)
James Richardson, Pitt County (case declared non-capital after conviction)
Dennis Mills, Alamance County (plea to 1st degree during jury selection)

Al Bellamy, Iredell County (judge declared case non-capital after ruling on mistrial, due to state's hiding of evidence)

Death Verdicts:
Tony Summers, Guilford County
Danny Hembree, Gaston County
William Robinson, Stanly County

Life in Robeson County

Yesterday, a jury returned a verdict of life in the sentencing of Larry Robinson in Robeson County.

Press about the case found here.

Wednesday, December 14, 2011

Breaking News

Michael Peterson granted new trial in Durham!

Governor Purdue Vetos Racial Justice Act Repeal

Today, Governor Purdue vetoed the Racial Justice Act Repeal.

Governor's Veto Message:

“I am – and always will be – a strong supporter of the death penalty. I firmly believe that some crimes are so heinous that no other punishment is adequate. As long as I am Governor, I am committed to ensuring that the death penalty remains a viable punishment option in North Carolina in appropriate cases.”

“However, because the death penalty is the ultimate punishment, it is essential that it be carried out fairly and that the process not be infected with prejudice based on race. I signed the Racial Justice Act into law two years ago because it ensured that racial prejudice would not taint the application of the death penalty.”

“I am vetoing Senate Bill 9 for the same reason that I signed the Racial Justice Act two years ago: it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”

“Finally, it is important to be clear that the Racial Justice Act does not allow anyone to be released from prison or seek parole. Both my own legal counsel and legal experts from across the State have assured me that even if an inmate succeeds on a claim under the Racial Justice Act, his sole remedy is life in prison without the possibility of parole -- and even that would only occur if a judge first finds that racial discrimination played a significant role in the application of the death penalty." 

NC Supreme Court Criminal Decisions, 12/9/2011

State v. Slaughter. Per curiam reversal for reasons stated in dissent. See post on COA decision here.

State v. Starr. Affirming COA decision (here) of no error in failing to give jury a copy of the requested transcript during deliberations.

When a jury asked for a transcript, the judge told them that they couldn't have it because "we don't have the capability of real time transcripts so we cannot provide you with that."

Case law clearly says that giving transcripts is a discretionary decision and if the judge does not exercise discretion, the decision is erroneous. Here, the judge did not properly exercise his discretion and thus erred. However, given the error is raised on plain error, no relief, given that there is no showing of prejudice.

State v. Nabors. COA unanimously reversed a cocaine conviction, as only evidence of it being cocaine was visual inspection (here).

Defendant ran a claim at trial that Smith, rather than himself sold the drugs. He never contested that it was cocaine at trial. In fact, Smith testified for the defense that he brought cocaine and sold it to the state. This was sufficient evidence, even in the absence of lab testing. "When a defense witness's testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony in arguing that his motion to dismiss should have been allowed"

State v. Williamson. MAR was remanded by COA to trial court for failing to make written findings. SC noted that the trial court did make written findings and sent it back to COA for further review. See old post here.

Cline Publicly Admonished for Filing False Motions

Cline, from N&O.
During a hearing today, Judge Hardin, a former prosecutor, admonished DA Tracey Cline for filing false motion. Cline apologized.

Cline filed false motions seeking visitation records from prison records of inmates, claiming that she was under a deadline to file a response to an MAR. The truth, no such MAR had been filed by the defendants.

These were the same cases that formed the basis for motions Cline filed challenged the integrity of Judge Orlando Hudson--a motion that were dismissed as utterly groundless.

Cline withdrew the request for the records.

A quiet groundswell is growing in Durham suggesting that Cline should be removed for her unethical actions. It is beginning to erupt, as Attorney Scott Holmes came forward in the last few days to call for her removal.

See article on Holmes calling for resignation and on Hardin admonishing Cline.

Monday, December 12, 2011

NC Court of Appeals, Criminal Decisions (Dec. 6, 2011)


State v. Gregory Brown.  Forgery appeal.

Defendant presented a check for payment, that was a forgery. He told police that a "light-skinned black dude" named J gave m the check for $655 and said I could keep $50 if I cashed it for him.

Held: Insufficient evidence. Despite the check having some irregularities on the face and the other circumstances, insufficient evidence of knowledge and intent by defendant to cash a forged check.

State v. Gillikin.  Appeal of 2nd rape, false imprisonment, and misdemeanor larceny conviction.

During deliberations, the jury sent out a note after 4 hours that "We cannot reach a unanimous decision on 4 of the 5 verdicts." Judge instructed the jury that he read their note that they couldn't reach a unanimous verdict and "in a case such as this it's not unusual." The court then "reminded" the jury that "it is your duty to find the truth in this case and reach a verdict." Instructed them to go back and "deliberate until you have a unanimous verdict." 90 minutes later, they came back guilty.

Held: This charge can reasonably be construed by a juror to surrender his well-founded convictions. It improperly coerced a verdict. Prejudicial. New trial.

Also held that prosecutor violated rules of professional conduct in it's closing, by name calling, expressing opinion the defendant was a liar. "The entire tenor of the prosecutor's argument was undignified and solely intended to inflame the jury." Court noted that, had the trial court not intervened ex mero motu (as it did), this would be cause for error.

Other Cases. 

State v. Myron Britt. Appeal of 1st degree murder conviction. Click here to see our post from the trial.

Defendant's wife was shot and killed with a single .25 bullet while staying the night with a woman she was caring for. There were no signs of forced entry or theft. Evidence against the husband was that he had borrowed a .25 pistol from a relative and it was now missing, that a .25 round was found in his car, and that a bullet that had previously been fired from that .25 (into a baseboard by accidental discharge) matched the bullet in his wife. State's theory was that the murder was to collect insurance money and pay off debts.

Defendant put on evidence of an alibi (his kid was home and never heard him leave that night), ballistic experts that testified the bullet didn't match, and evidence of a happy marriage and ability to pay debts, using his business income and his wife's teaching income.

First, defendant argues that State's ballistic evidence should not have been admitted as unreliable under 702. First, held that forensic toolmark identification is sufficiently reliable, has been admissible for decades, and defendant did not offer any "new" evidence as to why it should not be admissible. Particular evidence was qualified by training and experience.

Second, defendant objects to evidence of false information in a 5 year old mortgage application should not have been admitted under 404 and 403. Court found it relevant to motive, as state's theory was financial hardship motivated the killing.

State v. Oliver. Appeal of conviction for possession of stolen vehicle.

Car stolen at the night before. At 1:00pm the next day, defendant pulled over driving the car, with two passengers. Defendant had a valet key and said the car belonged to "Joe." Defendant later said he rented the car near Urban Ministries from a crack head. Defendant testified and said he didn't know it was stolen and planned to bring it back at 7:00pm, when he was done renting it. Defendant testified that crack-heads often rent their cars out in the area to buy crack.

First, no error in failing to instruct on unnauthorized use, which the NC SC has ruled is not a lesser included.

Second, sufficient evidence of knowledge of stolenness, given that it was rented for a day by a crack head and, in his statement to police, he said he "figured the car was stolen."

State v. Sprouse.  Appeal of statutory rape (5 counts), sex offense (4 counts), indecent liberties (9 counts) and sexual activity by a substitute parent (9 counts).

Substantial evidence presented of all counts in the form of the victim (13 at time of offense) testifying to all the acts occurring. The slightest penetration is all that is necessary to prove intercourse.

No abuse of discretion in the judge denying his motion to sequester witnesses, despite one instance of a witness conforming her testimony to another witness (about the length of stay in a hotel).

Last, trial court committed plain error in allowing DSS social worker to testify that they "substantiated" sex abuse against A.B. by defendant. This is classic impermissible vouching. However, no objection, so only get relief if so prejudicial that it results in fundamental error, and court finds no such prejudice here.

Friday, December 9, 2011

Vedict in Stanly County

Today, the jury returned a verdict of death in the case of William Robinson.

Press here.

Jury Deliberating on Death in Stanly County

Yesterday, the state and defense gave closing arguments in Stanly County on whether William Robinson should live or die.

The jury is out deliberating now.

Tuesday, December 6, 2011

Stanly Jury Convicts Robinson

On Thursday, a jury found William Eugene Robinson guilty of the first degree murder of Keith Crump and the attempted murder of Robert Tucker, III. The jury convicted both on the theory of felony murder and on premeditation and deliberation. Robinson was also convicted of robbery with a dangerous weapon, larceny of a firearm and possession of a firearm by a convicted felon.

This jury has found that Robinson shot and killed Mr. Crump while robbing a store in Albemarle.

The state began putting sentencing evidence on at that time. The jury will next have to decide whether Robinson should live or die.

Monday, December 5, 2011

Judge Fox Dismisses Cline's Claims

Judge Fox dismisses Cline's Allegations
Tracey Cline, the elected DA of Durham County, filed a series of motions asking that Senior Resident Judge Orlando Hudson be removed from high profile murder cases. Her claim: he is biased against her and is treating her unfairly.

Judge Fox dismissed the claims, calling the evidence "woefully inadequate."

Cline's behavior has been increasingly erratic and problematic in Durham County. The News & Observer uncovered numerous incidents of her being less than candid with the court in it's Twisted Truth series. In the last few days, an allegation that she blatantly lied in a motion to Judge Hardin to gain access to records has come forth.

This, compounded with her decision to take on Judge Hudson and make scurrilous allegations against him, may be the death knell of her reign in Durham.

I'm sure this isn't over. Press below:


Thursday, December 1, 2011

Rebuttal Begins in William Robinson

In Stanly County, the state began rebuttal in the guilt phase of State v. Robinson.

Robinson presented evidence that his mother drank throughout her pregnancy and that both his father and mother have extremely low IQs. Robinson himself has borderline intellectual functioning. This had a major impact on Robinson's brain, resulting in a very low functioning adult. Robinson's lawyers have argued that Robinson did have the capacity to form the requisite intent to commit first degree murder.

The state has begun putting on state-paid experts who, while acknowledging Robinson's low function, state the belief that he could form the required intent.

If convicted, Robinson could face the death penalty.

Press here and here.