Friday, February 17, 2012

Court of Appeals Criminal Decisions, 2/7/2012

State v. Cox. Appeal of possession of firearm by felon and misdemeanor marijuana. -- Ronald Cox.

A car avoids a checkpoint and pulls into a driveway. The driver skedaddles and leaves defendant and two other men in the car. As they approach, defendant is found breaking up and rolling marijuana into a blunt in his lap. Police also found a .45 revolver 10-12 feet from the open door of the car, in the path that the fleeing driver ran. A 2nd .45 revolver was found at the feet of one of the other passengers. No one claimed the guns.

The officers said everyone would get charged if no one claimed the stuff. Eventually, defendant stated the revolver belonged to him.

Held: Insufficient evidence of possession of the firearm. Can only show possession in these circumstances (where gun not on defendant's person or in his exclusive control) if there are "other incriminating circumstances." Under corpus delecti, the state could not use defendant's alleged statement to the officer as the sole evidence that the crime occurred, unless it is strongly corroborated. Here, the confession contained no details and was insufficient to nakedly support his possession.

State v. Valerie King. Appeal of order setting aside a plea disposition. -- Valerie King.

Defendant was charged with trafficking and other offenses. Defendant took an Alford plea to misdemeanor possession, in return for a dismissal of other charges. The state also agreed to return money and jewelry seized during a prior search. Later it turned out the $6,150 of the money had been seized and forfeited to the DEA. On motion, the court ordered $873 that was still held by police to be given to the defendant. Later, the court found the state had breached it's agreement in the plea and found that, since the agreement could not be complied with, it would be rescinded.

Some of the charges against defendant were dismissed on double jeopardy ground, but she was eventually tried and convicted of trafficking and was sentenced to 225 months and fined $500,000.

First, Superior Court erred in setting aside plea when it was unable to provide specific performance of the state in paying defendant owed moneys. Rescission was not an appropriate remedy here, as it could not repair the harm to defendant. Reversed and plea reinstated.

Second, a remedy was available. Money is fungible and no requirement that the exact same funds be given to a defendant. This is not a unique item. Ordered the state to return the $6,150 to the defendant from it's coffers.

State v. Privette and Smith. Appeal of extortion, conspiracy, possession of stolen goods and habitual felon. -- Antwan Privette and Deangelo Smith.

First, no error in joining co-defendants for trial. No Bruton issue (of co-defendant's statements being used in violation of confrontation clause). Defendant only complains about state using his own statements against him, which would come in anyway.

Second, no error in putting in evidence related to history, organization, and practices of the Blood Nation gang, along with pictures of the defendant's tattoos. "Assuming the trial court erred..." such error was harmless due to overwhelming evidence of guilt.

Third, no plain error in state's closing argument, talking about defendant's neighborhood and then saying, "If you don’t send a clear message that they’re guilty and this is not okay whether it’s in southeast Raleigh, whether it’s in your backyard, in your community -- there are going to be more guns in the faces of people like Cynthia Perry who’s your neighbor. And there are going to be more young men like Gary Lynn who could have been somebody."

While improper, is not an "extreme impropriety" warranting relief.

Fourth, insufficient evidence of possession of stolen goods, where defendant never had actual possession and only "incriminating circumstance" is defendant's gang affiliation with other persons who did possess the stolen goods and that he went along while someone else went and pawned the goods.

Fifth, trial court erred in putting on evidence about a private conversation between defendant and his wife. Defendant's threats in that conversation were not relevant to any other matter (the state argued they were relevant to show his authority over someone else).

New trial for Prevatte, but not Smith.

State v. Reeves. Appeal of DWI and reckless driving conviction. -- Douglas Reeves.

In District Court, state dismissed the reckless driving and defendant was convicted of DWI. On appeal in Superior Court, defendant was convicted on both counts. Superior Court arrested judgment on the reckless driving, noting that it was used to enhance the DWI, as an aggravating factor.

1st, sufficient evidence of DWI. An officer arrived on the scene and found the defendant sitting in the driver's side of a vehicle in a ditch. He was drunk and confessed to having driven the car into the ditch. This is not a corpus delecti issue, as his confession was not the sole evidence of his guilt. The fact he was in the driver's seat, drunk, in a car in a ditch, is circumstantial evidence that supports the truth of the confession.

2nd, Superior Court lacked jurisdiction to try him for reckless driving, since that count was dismissed in District Court and not appealed. If the dismissal is not part of a plea agreement, it cannot come back in Superior Court.

3rd, for factors in aggravation of a DWI, state must give 10 days notice. The state failed to give such notice hear. Sentencing vacated and remanded for re-sentencing.

State v. Reynolds.  Appeal of felony breaking and entering and felony larceny. -- William Reynolds.

Defendant entered a plea, in exchange for the dismissal of other charges. The plea agreement stated that "Defendant will be sentenced to 135 months in the DOC." He was sentenced as habitual felon to 135 to 171 months and awarded $3,015 in restitution. Defendant filed a pro se MAR, challenging the restitution and that court erred in not informing defendant of the maximum.

Held: Trial court erred in accepting his plea as he was not informed of the correct maximum sentence. Trial court told him the max was 168, but the max was 171. Under N.C.G.S. 15A-1022(a)(6), a superior court may not accept a plea unless the judge personally informs the defendant (among other things) of the maximum sentence. This was not harmless, it was an additional 3 months, which is prejudicial.

New trial.

Other Cases. 

State v. Adams. Appeal of trafficking convictions. -- Norman Adams.

Facts: Taking the facts in the light most favorable to Defendant, Shaw called Defendant repeatedly requesting cocaine. Defendant told him he would “call a guy.” Defendant called Mr. Armstrong to try and get cocaine. Defendant then drove to Mr. Armstrong’s house after he did not answer his phone. The next day, Defendant picked up Mr. Armstrong and drove him to a location previously arranged to meet Shaw

1) No error in refusal to give entrapment instruction. To get an instruction, there must be substantial evidence that (1) law enforcement officers or their agents engaged in acts of persuasion, trickery or fraud to induce the defendant to commit a crime, and (2) the criminal design originated in the minds of those officials, rather than with the defendant. The facts (above) show defendant was predisposed to commit the crime and admitted on cross he had been the middleman before.

2) Sufficient evidence of construction possession of more than 28 grams of cocaine (for trafficking). While defendant did not have exclusive possession of the cocaine, he was driving the car and knew it was there. This was sufficient for the jury to infer he constructively possessed the cocaine.

State v. Barr. Appeal of accessing a government computer to obtain property or services by false pretenses, N.C.G.S. 14-454.1(a)(2) and (b). -- Betty Barr.

Defendant accessed the DMV system, with authorization, regularly as a clerk for a car company. He registered three titles with an odd designation for a company, earning $59 in fees. The facts are vague on this, but it appears the state theorized that he did so for some nefarious purpose.

1st) Sufficient evidence. Defendant did access the computer for the purposes of obtaining services--the service of obtaining a title. Sufficient evidence for jury to infer willfulness. Defendant had some evidence that the DMV instructed another agency to use the code he was using to achieve the transaction. Other witnesses testified that Defendant was the source of this code, not the DMV. Jury may believe whoever they like.

2nd) Judgement should be arrested on the (b) violation (a class H), as it was not intended that someone could be convicted under (a)(2) (access for obtaining services, a class F felony) and in the (b) catchall for the same action.

3rd) No error in judge refusing to instruct on the defense of government authority. This instruction would have been that defendant could not be guilty, as he was "entrapped" by relying on government authority (here, the statements of the DMV he alleged in his testimony).

“[a] criminal defendant may assert an entrapment-by-estoppel defense when the government affirmatively assures him that certain conduct is lawful, the defendant thereafter engages in the conduct in reasonable reliance on those assurances, and a criminal prosecution based upon the conduct ensues.” (quotation omitted). “In order to assert an entrapment-by-estoppel defense, [the defendant] must do more than merely show that the government made vague or even contradictory statements. Rather, he must demonstrate that there was active misleading in the sense that the government actually told him that the proscribed conduct was permissible."

Person he was relying on was a licensed private contractor, not a government agent. Thus, no instruction.

State v. Burrow. Appeal of trafficking in Oxycodone. -- Jonathan Burrow.

First, it was plain error to admit the SBI report of an analyst who did not testify into evidence, as violative of the confrontation clause. A detective read the report into the record, finding that the substance was Oxycontin. This violated the confrontation clause, as the detective had no independent expert basis for making the statements. This was prejudicial, as no other evidence was presented showing the substance was a controlled substance. Without the report, there would have been a non-suit.  New trial.

Judge Hunter dissents. Said it was harmless, as defendant elicited the same info on cross-examination.

State v. Chapman. State appeal of order dismissing two counts of first degree murder. The state, however, failed to challenge the relief that was given under habeas corpus, leaving the COA without jurisdiction in the matter. Dismissed without considering merits. -- Gregory Chapman.

State v. Ellerbee.  Appeal of 1st degree burglary and AISBI. -- Gregory Ellerbe.

Defendant charged for breaking into a man's home, dragging him into the street and beating him and threatening him over owed money. The victim recognized the defendant's voice, but couldn't see his face. Two other witnesses saw the assault and ID'd the defendant.

1st: no plain error in putting on, as 404(b) evidence, information about a prior assault committed by defendant against the victim's father. Wasn't prejudicial due to overwhelming evidence of guilt.

2nd: while it was error to allow state to impeach a defense witness with 25 year old manslaughter conviction, it was harmless as defendant due to overwhelming evidence of guilt.

State v. Holder. Appeal of DWI and felony elude arrest. -- Terry Holder.

Defendant, drunk, led police on the following chase: "During the pursuit, defendant operated his vehicle in excess of 100 miles per hour, drove at times without headlights, and ran stop signs. Defendant also passed a gasoline tanker truck and “cut off” the tanker by making a sharp turn just in front of the tanker. Defendant was finally stopped when he ran over “stop sticks” deployed in front of his vehicle by another officer. The stop sticks punctured defendant’s tires, causing his vehicle to slow down and run into a ditch. Defendant was subsequently tested for alcohol use and found to have a blood alcohol level of .11."

Defendant challenges conviction, arguing counsel was ineffective in conceding his guilt without permission, under Harbison. Defense counsel put on record that during his closing he might conceded guilt to something other than felony flee/elude arrest, that they'd talked about it, and the defendant agreed. Judge addressed the defendant on this and defendant agreed that they had discussed it, but it was not clear what charges defendant was conceding. At closing, defense argued they were only guilty of misdemeanor flee and elude arrest.

Here, record sufficient to show knowing consent.

State v. Michael Ray King. Appeal of habitual felon conviction. -- Michael Ray King.

Remanded for rehearing due to inadequate record.

State v. Shaw.  Appeal of robbery with a dangerous weapon, possession of firearm by felon, and habitual violent felon. Sentenced to life without possibility of parole. -- Xavier Shaw.

Defendant requested not to be present at trial and, over objection, the court forced him to be present. Defendant argues error and that he had a right to waive his presence. Case law only allows that, in a non-capital case, a defendant may waive his right to appear. Nothing suggests that it is error to require the defendant to be present.

Wednesday, February 15, 2012

Jason Young Retrial

The retrial of Jason Young for the first degree murder of his wife is now into day 8. Follow the trial on twitter or watch on WRAL

Monday, February 13, 2012

Video Shows Harm of Racial Discrimination in Capital Jury Selection

Three African-Americans tell stories of being excluded from capital case juries because of their race in North Carolina.

The North Carolina Racial Justice Act was passed in 2009 to protect capital cases from racial bias. Now, Legislators are attacking the Racial Justice Act saying it isn't necessary. But in North Carolina, racial bias in the justice system is alive and well.

Cline Hearing Postponed

Today, Judge Hobgood delayed hearing on the removal of district attorney Tracey Cline until next Monday. Cline reported being sick and having difficulty finding counsel.

Judge Hobgood did not rule on motions to quash subpoenas of editors and reporters at the N&O or of attorney Heather Rattelade. Cline was losing her voice at the hearing and the court decided it was best to deal with all issues in the case next week.

Kerry Sutton, the movant, said her case will take a day to put on, then it will be Cline's turn to put on evidnence.

Wednesday, February 8, 2012

Racial Justice Hearing Continues in Cumberland

Follow the RJA hearing in Cumberland on twitter (#rja).

Exciting developments, including state expert noting that he intentionally didn't write things down to prevent the defense from learning about them.

Friday, February 3, 2012

COA Decisions, Jan. 17, 2012

State v. Hammonds.  Appeal of larceny of a firearm, RDO, and assault on a government official.

After a lunch break, during voir dire, defendant reported seeing an already accepted juror having lunch with a lawyer from the DA's office. Told the court he would have struck the juror if he'd known of the relationship. The judge questioned the jurors and number 8 indicated that he had, but hadn't discussed the defendant's case. Defendant requested to strike that juror (he hadn't used 2 of his strikes) and that request was denied.

Held: Reopening voir dire/strikes is a matter within the discretion of the court. However, once the court reopens examination of a juror (by asking question), parties have an absolute right to use their strikes. Was error not to strike the juror. New trial.

State v. Hogan.  Appeal of RWDW.

Defendant was denied final argument, after the court found that he had "introduced evidence" during his cross-exam by reading aloud a witnesses prior statement to police.

Reading and questioning someone about prior statements, as long as they are related to testimony on direct, does not constitute offering evidence (unless the written statement itself is offered into evidence and provided to the jury).

State v. Matthews. Appeal of breaking and entering and larceny charges.

1st, court improperly denied last argument to defendant when he crossed an officer about the officers report, which based on the video footage of the break in, named another person as a suspect. Defendant did not enter the report into evidence and this was relevant to the officer's direct testimony about the investigation of the case. Defendant did not offer evidence and should have had last argument.

2nd, no error in admitted evidence of defendant's DNA found at the scene. State collected blood samples, but not the evidence (for example, a carton of cigarettes) that the blood was on. Defendant fails to demonstrate that there was any exculpatory value or any error in the failure to collect such evidence.

3rd, no error in submitted evidence under 404(b) about subsequent break-ins committed by the defendant.

New trial.

State v. Rico.  Appeal of MAR and guilty plea to voluntary manslaughter. Worth a read. Interesting on issue of mistake of material fact in a plea agreement.

Defendant pleaded guilty to manslaughter and admitted to one aggravating factor. Under the agreement, defendant was to receive 84 to 110 months.

The Judge accepted the plea and sentenced the defendant. He made no findings of aggravating factors. Defendant challenges the sentence, by pro se MAR, as he was sentenced in the aggravated range, but no aggravating factors were found. Court erred in denying the MAR. Court erred, even in a plea situation, in not finding aggravating factors.

Remanded for resentencing. But, there is a problem with the plea. The stipulated aggravating factor was the use of a deadly weapon, but this is inappropriate as that was necessary to prove the voluntary manslaughter (can't use in aggravation what you had to use to prove the elements of the crime).

Remanded to determine if the plea must be set aside and defendant should be re-sentenced under the plea arrangement (effectively taking away the stipulation to the aggravating factor).

Other Case
State v. Ballance. Appeal of convictions for "taking a bear with aid of bait" by placing food in area designated for bear hunting. Found the statement of charges effective and that the many types of listed illegal ways to bait a bear were not separate offenses. Second, under open fields doctrine, no search issue in the officers entering the defendant's land and observing facts/taking statements that were incriminatory.

State v. Cook. Appeal of breaking and entering and larceny after breaking and entering. At a federal government building, someone stole a gym bag and a laptop from out of the offices of an employee. Two days later, defendant was found with a fake ID badge and some goods stolen from the place. Defendant confessed to committing "several burglaries" when interrogated. A t-shirt found at the scene matched the DNA of the defendant.

First, no error in officer testifying about defendant's statement. Defendant crossed on those issued asked the detective to confirm the statements as part of this theory that the way the defendant described those burglaries does not match this burglary, and did not object when if was initially offered by the state. This invited error and waived review. Further, failure to move to suppress pre-trial waived any claims that the confession was involuntary.

Second, video of the robbery was properly authenticated. Videos can be authenticated by:

“(1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed”; “(2) proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape”; “(3) testimony that the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing”; or “(4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.”

Here, it was offered under #2 and the state had to show that the camera was properly maintaining and operating properly when the tape was made. Officer's testimony that it was a "live stream recording device" and that the video was the same as he viewed it a few days after the theft, even though he didn't testify about maintenance, was sufficient. Even if it was error, not prejudicial due to overwhelming evidence of guilt.

Third, no error in allowing jury to view stills of the video during deliberations. No abuse of discretion.

Fourth, state had adequate proof of prior out-of-state convictions for sentencing purposes. Must prove the conviction and that it is either similar to an NC offense or treated as a felony by the other state by preponderance of the evidence. DCI records are adequate. Remanded for hearing because record not clear.

State v. Kidwell.  Appeal of first degree murder conviction.

1) Discovery. Judge ordered all discovery be provided by a date certain. 5 days before trial, defendant was given 22 pages of handwritten notes of a detective. Defendant requested a continuance and that request was denied. This included new material that defendant had no opportunity to investigate. No evidence of abuse of discretion, as defendant can only point to his "hope" that it would lead to useful investigation.

2) Sufficient evidence, where, in convenience store killing, shoe prints at scene were similar to defendants, defendant's fingerprints found in the bathroom, and victim's DNA found on money and shoes found in defendant's possession.

State v. Lee.  Appeal of attempted first degree murder, RWDW, and AWDWIKISI.

1st, no fatal variance between indictment and evidence on the AWDWIKISI charge. Essential elements are assault, with a deadly weapon, with intent to kill, inflicting serious in jury, not resulting in death. Indictment must name the weapon used and state if it is inherently deadly or describe how it was used in a deadly way. State cannot later change the identity or description of the deadly weapon (if they do, it's a fatal variance).

Here, defendant used an AK-47, but the indictment says he used a handgun. This is not a material difference, as both are obviously dangerous weapons and carry the same legal significance.

2nd, no error in denying defendant's motion to remove his shackles in front of the jury. A defendant cannot be shackled in front of a jury unless there are "extraordinary instances." However, in discretion of court, can shackle to prevent escape and protect others. A full evidentiary hearing must be held if the shackling is to be allowed.

Here,  no good reason was given and the court did not follow the well-established law that he had to hold a hearing and make a determination if shackling is necessary. While error, was not "fundamentally unfair" and was therefore harmless. Court instructed the jury not to consider the restraints and, despite the shackling, was acquitted on one of the attempted murder counts.

3rd, no speedy trial violation. Case was 22 months awaiting trial. Such a delay is unusual, but must look at other factors. Here, the reason for the delay included hearings about defendant's lack of satisfaction with his lawyer and the appointment of new counsel. Also continued to undergo a psychiatric evaluation and competency hearings. State caused 10 months of delay in not calendaring a competency hearing, however the reasons are unclear. Defendant argues he was prejudiced because a witness "Sirhan" was no longer available, but no evidence in record of how this affected him. In light of the lack of prejudice and the reasonableness of at least some of the delay, no error.

4th, jury verdict was not inappropriately coerced when, at 5:30p, after 2 hours of deliberating, the judge informed the jury to call their loved ones and say they were going to be late because "we are going to stay here this evening with a view towards reaching a unanimous verdict." This was not coercive, under the totality of the circumstances.

State v. Pender.

First, no error in denying defense cause challenge of juror. The juror had read about the case in the paper and said, when asked if he could set it aside and follow the law that he "would do my best." After follow up, said, "yeah, I think I can." After cause challenge, the juror reiterated, "Again, I think I can. I believe I could put it aside." No abuse of discretion.

Second, no Batson violation where state used six strikes on black jurors. Defense made a prima facie showing, state offered its reasons: unresponsiveness, deceit, failure to make eye contact, alleged acquaintance with defendant’s former girlfriend, an extensive history of purchasing pawn tickets, and prior employment at the convenience store where the incident occurred; and trial court found that defendant did not prove evidence of clear discrimination.

The court found that, unless the prosecutor's explanation includes discriminatory intent, it "will be deemed race neutral."  No error.

Third, no error in denying motion for mistrial, even though a state witness testified to new details that were never provided to defense in discovery, despite a clear obligation on the part of the state to do so. Hide evidence? No problem. No error. Trial court properly used it's discretion to remedy the violation by offering a continuance or recess to review the discovery.

Fourth, no error in refusing to give voluntary manslaughter / imperfect self-defense instruction. Defendant failed to comply with his discovery requirement to disclose defense of self defense within 20 days after the case is set for trial. Double standard much? Further, even if they had, such error would have been harmless.

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

First, state was precluded from entering an SBI report about where a shot was fired from. The state, in questioning, mischaracterized another witnesses testimony who only heard the shots (and saw the shooter shortly before) as saying where the shots were fired from. Court struck and ordered to disregard, but did not grant a mistrial. No abuse of discretion. While the statement was misleading, it did not violate the suppression order and was properly struck.

Second, no error in witness stating where the defendant was standing on rebuttal, given that the defense did not object until the question had been asked and answered. Further, no grounds for the objection were given.

Third, state argued in closing that, despite contrary testimony, that defendant had no right to enter the home where the crime occurred. No error for the court not to have intervened, absent an objection.

State v. Spencer.  Appeal of eluding arrest and assault on a government official with a deadly weapon.

No error in failing to instruct on lesser included offense of misdemeanor assault on a government official.  During the chase, at one point, defendant drove his car at the officer, who was on foot. No basis for an instruction that the assault was not with a deadly weapon. Under these facts, the car was  deadly weapon.

Other issues dismissed to be refiled as an MAR.

State v. Surratt.  Remanded reversal from Supreme Court on remaining issues, in child sex case.

1) No plain error in court using term "victim" in front of the jury to describe state's witness.

2) Dismissal of appeal of satellite-based monitoring, as it was not properly raised.

State v. Watkins. Appeal of burglary, robbery, and kidnapping convictions.

First, setting aside burglary conviction. Defendant knocked out window with a shotgun, heard noises inside, and then fled the scene. For burglary conviction, must show breaking and entering. Defendant did not enter residence, so no burglary. Should have been convicted of lesser included offense of felony breaking or entering, where break alone is sufficient.

Second, sufficient evidence of common law robbery where defendant put gun on victim and made him drive him somewhere. Sufficient evidence of robbery, even though he never parted the victim from his car.

Third, not plain error to allow in-court ID, where out of court ID was a show-up with the defendant surrounded by officers.

Thursday, February 2, 2012

Evidential of Racial Discrimination Mounts

Dr. Woodworth  testifies
In Cumberland County, evidence of racial discrimination in the Marcus Robinson case is mounting. Multiple experts have testified about a demonstrated statistical bias in the disparate striking of blacks from juries by district attorneys.

Multiple statisticians have testified that the strikes cannot be explained by other factors (such as employment, criminal history, etc.) and that an undeniable pattern is forming that blacks were disproportionately struck from juries on the basis of race.

Under the Racial Justice Act, if jurors were unfairly discriminated again, a defendant is entitled to have his or her death sentence converted from death to life without the possibility of parole.

Read more here.

Wednesday, February 1, 2012

Governor Appoints Interim DA in Durham

Today, Governor Purdue appointed Superior Court Judge Stanback to take Cline place in the interim, pending a final determination if she will be removed as DA.

More here.