Thursday, March 22, 2012

NC Court of Appeals, Criminal Decisions (Mar. 20, 2012)

State v. Aguilar-Campo. Appeal of trafficking conviction.

The state provided a translated transcript of a buy involving the defendant (it was in Spanish). Right before trial, they realized the interpreter was not AOC certified, so hired someone else and gave his translation and credentials to the defense. The defense objected on grounds that this was not provided timely in discovery.

Held: No error, as there was no unfair surprise--the purpose for discovery.

Second, no error in failing to instruct jury on what knowingly means, even though defendant requested a legally accurate description. Found that this was not error, as other instructions (definition of possession) adequately included this information.

State v. Fisher. State appeal of court grant of motion to suppress.

Defendant stopped for a seat-belt violation. Cop was suspicious of drug traffic based on:

  1. Driving in a "pack of traffic", diligently, with both hands on the wheel
  2. Car registered to a woman-- 3rd party car, not the driver
  3. Dirty hand print on trunk of vehicle, indicating it had recently been used
  4. Air fresheners in the car.
  5. Defendant said he was returning from Smithfield from going shopping, which was over 2 hours away, but there was no bags in the car.
  6. Defendant never asked why he was stopped.
After defendant refused a consent search, he was detained for 20-25 minutes waiting for a canine unit to arrive, which alerted and the rest is history.

Held: This was sufficient reasonable suspicion to detain the defendant for 20-25 minutes awaiting a canine unit. While the original purpose of the stop, the seat belt, was over, there was additional reasonable suspicion to allow the detention.

Suppression reversed.

State v. Oakes. Appeal of AWDWISI and habitual felony.

Ruled it was not plain error for the court to allow admission (without any objection from counsel) of statements that when defendant was previously in jail he associated with "drug boys."

Further, while it was error to admit unredacted plea transcripts of defendant's prior convictions during the habitual felony sentencing, such error was harmless.

State v. Pittman. Appeal of insurance fraud, obtaining property by false pretenses, and exploitation of an elder adult.

Defendant sold insurance to a little old lady, befriended her, and eventually got a document making his wife the beneficiary.  His wife also became joint owner on her bank accounts, changed the address to his address, and cleaned her out.

First, no error in joining the cases of defendant and his wife for trial. They were closely related. The statements of defendant's wife that came in, about knowing signing the document's was bad, but that her husband told her to do it, "had little bearing in the jury's evaluation of the credibility of defendant’s claim to have acted in Satterwhite’s best interests or with her consent." Thus, no improper prejudice.

As to Bruton or hearsay errors, defendant did not object and didn't raise plain error on appeal, so those potential errors are lost.

State v. Weathers.  Appeal of 1st degree murder convictions.

During the trial, an eye-witness began testifying about defendant's involvement, then broke down crying and refused to answer anymore questions. He became even more distraught when "a young man dressed in street clothes entered the courtroom." When asked if he had been threatened, he said "I don't even want to answer that."

Defendant's motion for mistrial was denied. The court found that the defendant had made the witness unavailable by his "wrongful acts" and forfeited his right to cross examine the witness. No mistrial was granted and the statements were left in the record.

Trial court made findings of fact that these were the defendant's wrongful acts:
  1. On the bus to the courthouse, defendant was overheard threatening Wilson.
  2. Defendant made several calls evidencing his "intent to intimidate Wilson."

The COA upheld the forfeiture ruling.

Friday, March 16, 2012

NC Court of Appeals Criminal Decisions

State v. Blocker.  Sentencing issue.

At sentencing, defendant filed a motion to suppress use of a prior conviction against her, on the grounds that it violated her right to counsel. The trial court denied that motion without a hearing.

The trial judge ruled it was an impermissible Boykin-style collateral attack on the prior conviction. NC courts have ruled that you cannot collaterally attack a prior conviction on the grounds that the Boykin Inquiry was not held or recorded (where court tells the defendant they have a right to a trial, a right to remain silent, and a right to cross-examine witnesses). While Boykin cannot be challenged collaterally, a defendant may contest, under 15A-980, the use of priors on the grounds that he or she did not knowingly waive the right to counsel.

Reversed and remanded for hearings on where defendant knowingly waived her right to counsel.

State v. Collins.  State appeal of trial court order suppressing an arrest on the grounds that a check point was unlawful.

Defendant was driving towards a checkpoint. To avoid it, he turned into a residential driveway. An officer knew the residents and knew the defendant did not live there. An officer approached him, as he was knocking on the door of the home, at 3:15pm. The officer asked what he was doing, and he said he heard someone in the area was hiring and he was trying to find out if they had a job for him. As he approached the officer, the officer noted he smelled of alcohol and had red eyes. Eventually resulted in DWI charge.

Trial court threw out the case, on the grounds that the check point was unlawful, as the checkpoint was set up without written permission by the highway patrol.

COA held that the lawfulness of the checkpoint was irrelevant, as the defendant evaded the checkpoint and was stopped due to his suspicious behavior of drunkenly knocking on a random door in the middle of the day. Remanded for further hearing on whether that stop was reasonable.

State v. Cooper. Appeal of five 1st degree murder convictions.

Major issue was suppression of the defendant' confession to five murders.

First, defendant argued that police threatened to bring charges against his father unless he confessed. The trial court found that no direct threats or promises were made. These findings were sufficient so the argument is overruled.

Second, defendant argued that his Miranda right to remain silent/counsel was violated. After asserting the right to remain silent/counsel in response to warning, police may not further interrogate-- which means doing anything that is likely to elicit incriminating responses.

After invoking his rights, defendant contends that the police arrested his father and "paraded" his father in front of him, which was intended to elicit incriminating responses. The court found that it was not intended to elicit an incriminating response and, after seeing this, the defendant voluntarily reached out to police.

Final issue-- it was not prejudicial error for the judge to refuse to give the defense-requested instruction on premeditation and deliberation that it means the defendant "weighed the consequences of his action."

State v. Cornelius.  Appeal of felony murder conviction.

Defendant was tried for burglary and felony murder. He was convicted of burglary, but the jury hung on felony murder. He was retried on felony murder and the jury convicted.

Facts: Home invasion. Invaders and home owner have a gun battle. Home owner killed, defendant also shot. 

1) Suppression of Statements: defendant argues that three statements he made to police while in the hospital and on medication were involuntary. Trial court found that defendant was alert and oriented and able to concoct a story whereby he was shot, but not involved in the home invasion. These findings were not unreasonable.

2)On retrial of felony murder only, the court ruled that defendant was collaterally estopped from re-litigating the burglary for purposes of felony murder. Collateral estoppel can appropriately be applied in criminal cases in North Carolina and was done so here.

State v. Fields.  Appeal of DWI conviction.

Defendant challenges the stop for lacking reasonable suspicion. Findings of fact were that the officer followed the defendant for 3/4 of a mile. Saw defendant weave  erratically within his travel lane, "like a bowling ball". There was heavy traffic. Did not see the defendant cross the fog line or the center line.

COA found this to provide reasonable suspicion. Prior decisions say weaving within your own lane is insufficient to support reasonable suspicion. The court distinguished those decisions by noting the officer used the term "like a bowling bowl" and noting that traffic in the other lanes were taking "evasive maneuvers."

State v. Friend. Appeal of DWI conviction.

Defendant charged with DWI. Case was set in district court 11 times, with several continuances due to the unavailability of state's witnesses. The state voluntarily dismissed the case when the court denied it's motion for a continuance. Then, the state filed the same charge in a different pleading number. Judge Charles Vincent dismissed the charge. The state appealed.

First, no separation of powers problem in dismissing the charge. The State was not inappropriately avoiding the courts denial of its motion to continue by re-charging under a new number. This did not subvert the courts' ultimate authority to manage its trial calendar.

Second, this did not violate the defendant's due process or right to speedy trial. Not so, says the  court, as the new charge was filed within the 2 year statute of limitations. Further, defendant never asserted speedy trial until he was on appeal in Superior Court.

State v. Lindsey. Appeal of felony fell elude arrest and possession of drugs.

Officer tried to stop a "bluish" van with the first letter W in it's license plate. The van got away. Later, a  "greenish-bluish" van crashed into a light pole near a windows. A black male with a "plaidish-type" shirt ran away. Police found a blunt wrapper in the van and a bag with some cocaine and marijuana in it in a trash can in the Wendy's parking lot. Defendant was apprehended.

All charges should have been dismissed for insufficient evidence.

1) Felony speeding to elude arrest: no evidence presented that this was the same van. Bluish van and one letter of the license plate. That's it. Insufficient evidence.

2) Possession of drugs: insufficient evidence for constructive possession. Items found in a trash can that weren't under defendant's exclusive control. Must have other incriminating factors to infer his possession. The fact that defendant wrecked a car in the vicinity, had blunt papers in the car, and ran are not enough. Insufficient evidence.

Steelman dissents on flee/elude and possession of marijuana; concurs on possession of cocaine.

State v. Rogers.  Appeal of AWDWIKISI.

First, trial committed no error in removing defendant's retained counsel, due to a conflict developed that he might become a witness. The trial lawyer personally knew both the defendant and the victim. He might have been called as a witness about their relationship and information relevant to motive. This was adequate basis for the court to remove and doesn't violate defendant's limited right to counsel of his choosing.

Second, no error in instructing the jury that the defendant held the burden of persuasion to prove automatonism.

Third, not double jeopardy to try for both AWDWIKISI and attempted murder, as they each have elements that the other doesn't.

State v. Vaughters. Appeal of sentencing.

Defendant pleaded guilty to murder, kidnapping, and robbery. He was sentenced (crime was pre-1994, so no life without parole), to "life", plus 25 years for the kidnapping, run consecutive.

Defendant challenges the kidnapping being sentenced in the aggravated range. The aggravator used was that he was armed with a deadly weapon. COA found this permissible, as it was not an element necessary to prove the kidnapping.

While the defendant used a deadly weapon in the kidnapping, it is not one of the elements. Held that a prior case, State v. Brice (which said that using a deadly weapon to do the confining precludes it's use at sentencing), was overruled by later case, State v. Ruff.

Kidnapping = “(1) confining, restraining, or removing from one place to another; (2) any person sixteen years or older; (3) without such person’s consent; (4) if such act was for the purposes of facilitating the commission of a felony.

Friday, March 9, 2012

NC Supreme Court Criminal Decisions, 3/9/2012

State v. Anderson. Aff'd, per curiam.

State v. Henry Brown. Per curiam affirmed and digged.

State v. Samuel Hunt. Appeal of COA decision reversing judgment.

Lower court found insufficient evidence of lack of consent, where victim was 17, had a 61 IQ, and testimony showed it would be difficult but not impossible for her to get a community college associates degree.

Supreme Court Reversed: finding that, although the state did not put on an expert to say the victim lacked the capacity to consent, it put on multiple lay witnesses familiar with her functioning. This was sufficient evidence for a jury to determine no capacity to consent.

State v. Aeric Whitehead. Appeal of denial of MAR in 2nd degree murder case.

Defendant was sentenced in 1994 to 2nd degree murder and sentenced as a class C felon under the Fair Sentencing Act (FSA), as a first offender. Under the FSA, the sentence options were 15 years to life. Defendant was sentenced to life (with parole).

Later in 1994, the legislature passed the Structured Sentencing Act (SSA), which mandates a 10-16 year term for 2nd degree murder.

Defendant filed an MAR to withdraw his plea as involuntary and arguing that his sentence violated his right to due process, since later persons committing the same conduct would receive lighter sentences.

Judge Sumner ruled that the SSA should be applied retroactively and modified the defendant's sentence to 157 to 198 months, and with credit, ordering his release.

Held: this sentence contravenes the appropriate sentencing statutes. The SSA is not retroactive and it is no violation of due process for it to be prospective only. The consent of the DA does not negate the authority of the court to invalidate an illegal sentence.

State v. Christopher Woodard. Digged.

Wednesday, March 7, 2012

NC COA Criminal Decisions (Feb. 21, 2012)

State v. Alshaif. Appeal of MAR on plead to AWDWISI.

Issue: Attorney did not inform legal permanent resident of the immigration consequences of his guilty plea. Under Padilla v. Kentucky (2010), the U.S. Supreme Court found that it was IAC not to inform clients of the collateral immigration consequences of conviction. Only issue here is if it applies retroactively.

First, Padilla is a new rule, not dictated by existing precedent. Under Teague, as a "new rule," it is not retroactive unless it is a (1) "watershed rule of criminal procedure" implicating fundamental fairness or (2) a substantive rule. The rule is procedure and, as a "narrow exception, not a watershed rule.

No right to relief, retroactively, under Padilla.

State v. Gettys. Appeal of first degree murder.

Defendant found guilty of 1st degree murder under a felony murder theory, based on robbery.

First, no plain error that statements of defendant's girlfriend were admitted that she didn't press him for details of what happened that night because she didn't want "to get him pissed off and beat her ass."

Second, there was sufficient evidence of robbery to support the conviction.  Evidence here is that defendant and victim were in an altercation on the side of the road and defendant beat the victim to death with a rock. The victim's wallet was missing, but defendant denied taking the wallet. Later, defendant gave his girlfriend $298 and the victim had cashed a work check for $290 earlier that day. A snitch testified that the defendant owed his girlfriend money and blew his work check on drugs, then had gone to ask to borrow money from the victim. This, together, was sufficient evidence of robbery.

Third, no error in refusing to instruct on voluntary manslaughter. This was harmless, as defendant was convicted of on theory of felony murder, so voluntary instruction couldn't have made a difference.

Fourth, no plain error in judge giving Allen charge to jury. Jury sent out a note that they were hung on the second day. They told the judge they were 11 to 1. Judge gave the Allen instructions based on 15A-1235(b). (1) No problem to do this after inquiring of the split. (2) No problem in giving this variation:

"Now, members of the jury, your foreperson informs me that you have been unable to agree upon a verdict. You are reminded that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women in an effort to reconcile your differences if you can without the surrender of conscientious convictions. No juror should surrender an honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

I‖m going to ask you to resume your deliberations and continue your efforts to reach a verdict. I ask you to think about the evidence again, to see what conclusions you reach from it, your analysis of it, to share that, to articulate that, and to see if you can do so——if you can reach a verdict with this guidance I just gave you."

(Major difference: statutes says to "deliberate with a view to reaching an agreement" whereas judge said "duty to do whatever you can to reach a verdict.")

State v. Hemphill. Appeal of felony breaking and entering, possession of burglary tools, resisting an officer, and habitual felon.

Brief facts. Officer finds defendant in closed car lot. Defendant runs from cop and is apprehended. Defendant then gives a pre-Miranda confesses he was there to break-in. A screwdriver was found on him. Later, officer's find a sledgehammer and a hole in the wall of the office.

First, the stop/patdown was legal. Reasonable suspicion existed to detain defendant when: (1) officer saw defendant matching a general description about suspicious activity in the closed lot at 10:00pm and (2) when defendant saw the officer, he ran.

Second, the confession must be suppressed as violation of Miranda. Officer grabbed the defendant, cuffed him on the ground, held him there with a taser, and began asking him questions about why he ran without giving Miranda warnings. The only questions that can be asked alongside a Terry stop are officer safety questions (i.e. do you have a gun?). This is an unwarned custodial interrogation. Confession suppressed. However, no prejudice, as Defendant later gave a second statement, after being given warnings. [no analysis of issue if 1st confession tainted/coerced 2nd confession].

Third,  indictment of RDO was not invalid. The indictment did not say how defendant resisted, it just said that he "unlawfully resisted, delayed, or obstructed a public officer in discharge of his duty by failing to obey the officer's command." This was sufficient.

Judge Hunter concurred, saying he didn't think defendant was in custody when interrogated.

State v. Lopez. Appeal of trafficking in cocaine conviction more than 400 grams.

An officer got a tip that defendant was driving with cocaine in the car. He pulled defendant for going 70 in a 60. Defendant said he was traveling to a construction job and did not have a valid NC driver's license. Defendant was neatly dressed, inconsistent with a construction worker. He became nervous during the stop. In the back of the car, in plain view, was a open bag with a yellow box of clear plastic wrap, consistent with the packaging of drugs. The driver then consented to a search of the car. Found drugs in the air intake compartment. The stop lasted a total of 12-13 minutes.

Held: Admission of the evidence was not plain error. Officer had reasonable suspicion to stop the defendant and, under State v. Jackson (2009), there was additional, reasonable suspicion to request to search. Defendant was visibly nervous, story was inconsistent, and saw plastic wrap consistent with drug packaging. Finally, consent to search the vehicle did include under the hood. Defendant could have objected when the officer asked him to open the hood.

Beasley reluctantly concurs citing the unpublished decision of State v. Burrell.

State v. Lowery.  1st degree murder appeal.

1st, no error in refusing to allow defendant to call a doctor to say defendant told him he confessed only because one of the officers threatened him with the death penalty. This was inadmissible hearsay. Not a statement made for the purposes of a medical diagnoses because they were not intended for "pertinent" to treatment or diagnosis.

2nd, no error in refusing to allow defense counsel to ask informants about conversations they had with their attorneys, relating to concessions for charges. These were protected by attorney-client privilege. Not waived by testifying.

3rd, not a violation of the 8th amendment to sentence a 16 year old to LWOP for a homicide.

4th, no error in failing to remove jury member for cause challenge, where she knew the DA personally and the DA was her son's soccer coach. Defendant did not renew the challenge after the jury returned it's verdict, thus it was waived.

State v. Schiro. Accessory after the fact to 1st degree murder appeal.

1st, consent search of defendant's car was constitutional. Defendant did not withdraw his consent when he complained to one officer than another officer was "tearing up my trunk" during the search. Officers did not exceed the scope of the search by removing the interior carpeted panels of the trunk, which were loose, while conducting the search.

2nd, sufficient evidence where defendant found in possession of the murder weapon and witness testified that he gave the defendant the gun and told him it was involved in the murder and asked him to hold it and give it back to him later, to destroy.

3rd, no error in admitting under 404(b) other thefts and break-ins, including some committed after the offense. These were admissible to show that defendant and the murderer were together and had opportunities to discuss the gun and if it was used in a murder.

4th, no error in instructing jury they could convict if found as accessory to murder under either felony murder or premeditation and deliberation, without distinguishing the two (despite defendant's claims that this created potential for non-unanimous verdict).

Monday, March 5, 2012

Jason Young: Guilty

Young found guilty of 1st degree murder. Will be sentenced to life without the possibility of parole.

Friday, March 2, 2012

Jury Deliberating in Jason Young Trial

The Jury deliberated for 5 hours today in the retrial of Jason Young in Raleigh. They have gone home and will be back Monday at 9:30am.

From the N&O:

"Under the prosecution's theory, Young would have traveled just over 500 miles in less than 12 hours, bludgeoned his wife Michelle after about 340 miles, cleaned himself up from a bloody crime scene, gotten his toddler daughter cleaned up after she tracked tiny bloody footprints across the master bedroom and down the hall toward her bathroom and left her alone with her dead mother for hours.

Bryan Collins and Mike Klinkosum each argued that such a scenario is far-fetched. Investigators found no scratches or bruises on Young within days of the death, they found no electronic trace of him for almost eight hours between midnight and 7:40 a.m. They found no blood or other forensic evidence in Young's 2004 white Ford Explorer. DNA evidence and prints found inside the Youngs' master bedroom and home could not be linked to Young or any of the 160 people investigators tested.

"It doesn't make sense, ladies and gentlemen," Klinkosum contended repeatedly.
They argue that investigators focused on Jason Young from the outset as their prime suspect, "like a laser," ignoring details that did not mesh with that theory.
"If you decide what happened before you go investigate, instead of finding the truth, your investigation will merely accept the evidence that confirms your suspicions and reject what's in conflict with it," Collins said. "This case is full of that."'

Read more here:

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Durham DA, Tracey Cline, removed from office

Today, Judge Hobgood removed Tracey Cline as the DA for Durham County.

A good analysis of the decision is here. Full text of Hobgood's decision is here.

One interesting sidenote here is that Cline's chief assistant, Jim Dornfried (in the back of the group in this picture) filed to challenge Orlando Hudson for his seat as Superior Court Judge this fall. His campaign will likely be a referendum on Judge Hudson's decisions and keep this controversy alive in the weeks to come.