Tuesday, May 29, 2012

The End of High Quality Representation in Defense Cases in NC

NC is moving to a per case fee award in indigent cases. This is the worst possible method of paying criminal cases.

Under this system, lawyers stand to make the most money for the least work if they:

1) Don't regularly meet with their client
2) Don't investigate their case
3) Always advise their client to plead guilty
4) Never file motions
5) Don't read discovery carefully
6) Don't pay for exhibits to be created
7) Don't file bond reduction motions
8) Don't find other pending or cases dismissed with leave to wrap up in a plea deal
9) Don't go to trial

If you actually vigilantly represent your client, expect to make $10 to $20 an hour.

For example, they expect lawyers to close up to 68 low level felony cases for $19,500. That's $286 a case. I wouldn't represent someone for spitting on the sidewalk for $286.

Meet with your client 2-3 times in jail, have a bond hearing, read discovery, interview one witness, meet with DA twice to work out a deal, sit around 2-3 times in court and put on a plea. That's 10 hours of work (at least) at $28/hour. I took on $120,000 in student loans for this?

Meet with your client 5-6 times, locate multiple witnesses and prepare them for trial, read discovery, file motions to suppress evidence, file motions in limine, prepare for trial, sit through a three day trial, win a not guilty verdict for your client and he goes home to his family. That's 40-80 hours of work at a minimum. You just made $3.57 to $7.15 an hour. That, is what we call, utter crap.

The last class E felony I tried (which counts as a "low level felony") took me 80 hours and I spent $300 on exhibits. Under this system, I'd be better off to go flip burgers at McDonald's.

Adequate representation in criminal cases is official over. I used to scoff at client's who said the following, but I won't any more: YOU BETTER GET A PAID LAWYER.

See the RFP for the debacle here. Also note, this horrible idea isn't coming out of the indigent defense system--which actually cares about the representation of poor people, but rather the legislature that is determined to continue wrecking our state...

Thursday, May 24, 2012

Defense Putting on Evidence in Williford Case

Watch live on WRAL.


NC Court of Appeals Criminal Decisions, May 15, 2012


State v. Tyson.  Durham County, Judge Paul C. Ridgeway.

Defendant requested a copy of the transcript from his mistrial, before being retried. Judge refused to provide it, setting the re-trial to begin the next day. Defendant objected.

Trial court erred in denying the defendant his transcript prior to retrial. Violates his constitutional right to present a complete defense. Under Equal Protection, mus provide indigent prisoners with the basic tools of an adequate defense. Transcript must be provided if it is necessary to preparing an effective defense.

New Trial.

Other cases. 

State v. Houseright. Forsyth County, Judge A. Moses Massey.

Appeal of statutory sex offense conviction, 1st degree rape, 2 counts statutory sex offense, and 6 counts of statutory rape.

First, sufficient evidence of sex offense where victim said, before the sex occurred, that defendant digitally penetrated her.

Second, no 404(b) error in allowing testimony that defendant had intercourse previously with a 13 or 14 year old, when he was 20 years old. Relevant to intent and plan.

Third, no plain error in court failing to intervene ex mero motu when a witness mentioned that another girl, "Cammy," was pregnant from the defendant.

State v. Rollins. Mecklenburg County, Judge Calvin E. Murphy.

Appeal of 2nd degree murder conviction. Defendant, who had no license, crashed and killed the victim during a high-speed chase with police.

First, sufficient evidence of malice in auto crash case where: defendant had no license, defendant had prior citations for NOL, defendant and friends had shoplifted from a shoe store, police officer tried to stop them and they ran (they stopped once, so defendant could change seats with the driver and drive during the chase), drove on wrong side of yellow line to pass cars, sped between 60 and 70mph in a 45, used turning lane to passed cars, drove through a corn field to avoid a stop sign, accelerated to 80mph, turned into oncoming traffic and had the wreck, killing an 84-year old widow driving to pick up a prescription from a pharmacy.

Second, no error under 404(b) to present: (1) shoplifting-- part of the chain of circumstances leading up to the event necessary to provide a "complete picture to the jury"; (2) prior citations from NOL-- relevant to prove malice; (3) defendant elbowed a girl in the car to escape the wreckage -- conduct after the accident is relevant to malice, as he continued trying to escape after the wreck occurred.

Third, not plain error for officers to testify that defendant committed offenses of reckless driving and felony speeding to elude arrest. Generally, officers cannot testify to final conclusions of guilt, but this was just using shorthand to describe the situation, directly based on their observations. Also, harmless error.

Fourth, no error in instruction to jury that

The Pattern says: "All twelve of you must agree to your verdict. You cannot reach a verdict by majority vote. When you have agreed upon a unanimous verdict(s) (as to each charge) your foreperson should so indicate on the verdict form(s)."

The Judge said: "You must be unanimous in your decision. In other words, all twelve jurors must agree. When you have agreed upon a unanimous verdict, your foreperson may so indicate on the verdict form that will be provided to you."

This did not impermissibly indicate to the jury that it must render a verdict.

State v. Williamson.  Forsyth County, Judge William Z. Wood, Jr.

Defendant appeals conviction for RWDW and dismissal of his MAR.

Defendant convicted for RWDW, largely on his own confession. Later, filed an MAR asserting new evidence that the state had obtained a statement from his co-defendant that the gun was not operational (a defense) and the defendant didn't read the statement. Turns out, the statement was placed in his courthouse mailbox a month before trial.

First, no error in failing to instruct on common law robbery, as no evidence was presented that the gun was inoperable and state doesn't have to specifically present evidence of operability. Weapon used in a robbery is assumed operable.

Second, MAR issue dismissed, because the denial of the MAR was not included in the record on appeal.

Steelman concurs, Wood made an oral order. He would affirm this.

Monday, May 21, 2012

NC COA Criminal Decisions, 5/1/2012

State v. Adams. Wake County, Judge Michael O'Foghluda. Appeal of two counts burning personal property and one count of felony breaking and entering.

404(b): State put in evidence of two out-of-state break-ins to victim's homes. The only evidence linking the defendant, her ex-husband, was cell phone records showing he was in the area at the time.

To be admissible, the acts must contain similarities that support the "reasonable inference that the same person committed both the earlier and the later acts." There must be a demonstrable nexus between the defendant and the act sought be introduced against him. Here, the cell phone records were "substantial evidence" (such that a reasonable mind might accept as adequate to support a conclusion." that the defendant committed the prior crime.

Ed. note: This decision is abhorrent. They used the out-of-town break in to prove the in-town break in, and allowed it to come in because it was similar. The only evidence linking defendant to the out-of-town break in was that his cell phone hit a tower in the area. What "reasonable mind" would accept that naked fact alone as adequate to support the conclusion that he committed the out-of-town break-in. Apparently, the NC Court of Appeals.

State v. Fowler. Mecklenburg County, Judge Forrest D. Bridges.

Appeal of denial of motion to suppress.

Defendant showed up at a meet to sell drugs arranged by an informant. The informant didn't appear, so the defendant left. Police stopped defendant for going 45 in a 35. Defendant didn't have a driver's license, but produced an ID card. The officer arrested defendant for DWLR. The officer asked for permission to search and the defendant said, "Go ahead." The officer found some marijuana in an ashtray.  The officer searched the defendant and found nothing. He then took him behind a school, placed him in the police car,  took off the defendant's pants, and found 3 grams of crack in the fly area of the defendant's boxers.

Held: this was not an "unreasonable and intrusive public strip search."

Under Battle, strip searches must meet a higher level of scrutiny. (probable cause plus exigent circumstances). This was a strip search, even though officer testified the boxers were not removed.

First, probable cause existed from: (1) informant that set up the meet; (2) search that found marijuana in car.

Second, exigent circumstances existed. The defendant had prior encounters with law enforcement and had been arrested before. The officer could reasonable expect that the defendant would attempt to rid himself of any evidence before being put in intake. Sure, there was a police station right down the block, but no evidence that it was open at 11:00pm or the officer could have conducted a more private search there. 

State v. Jones. Carteret County, Judge Kenneth F. Crow.

Appeal of 2d degree murder conviction.

In July 2009, defendant waived counsel and represented himself pro se. The case was tried before a jury in August and resulted in a mistrial.

In January 2010, defendant stated he again wished to represent himself. McNeil was appointed standby counsel, then substituted in March with Paramore due to health issues. On March 16, 2010, defendant requested that Paramore serve as his attorney of record, rather than standby.

In June 2010, defendant filed a pro se motion to disqualify Paramore, for not pursuing misconduct claims. Paramore informed the court that he would not pursue these issues, as they have no merit. Paramore was removed and Gerrans was substituted.

On July 14, 2010, Gerrans requested to be appointed as standby counsel, due to conflict with the defendant. In November 2010, defendant again asserted his desire to represent himself. A competency exam was held and he was found competent. Defendant was tried again, pro se, and convicted of 2d murder and sentenced to 25 years.

First: no error in court's refusal to instruct counsel to follow defendant's wishes regarding the misconduct claims.

Defense attorneys generally make tactical decisions but, where impasse occurs, defendant gets to decide tactical decisions. This was not a tactical decision. Defendant wanted the attorney to pursue claims that had no merit. Defendants cannot make their attorney's file frivolous motions or assert theories that lack any basis in fact.

Second: no error where defendant was not informed of his right to control tactical decisions, in making his choice to waive counsel.

State v. Laurean. Wayne County, Judge W. Osmond Smith. Murder conviction.

1) No error in failing to submit second degree murder as lesser included. Defendant argues that, since no evidence was presented on events leading up to the killing, the jury should have been instructed on 2d murder. Lessers only must be presented when affirmative evidence is presented supporting them. State here presented evidence of first, an no contrary evidence was presented. As such, no lesser.

2) No error in excluding specific instances of conduct bearing on victim's character for truthfulness.

Victim alleged defendant raped her. State offered this as the motive for the killing. The defense wanted to offer that, immediately prior to the rape allegation, defendant imposed military discipline on the victim, giving a motive to falsely accuse of rape. Court found this was inadmissible under 404(b).

Whether the allegation of rape was ground in fact or false was not before the jury. As such, this was irrelevant.

State v. Stowes.  Durham County, Judge Paul C. Ridgeway. Appeal of robbery with a dangerous weapon, possession of firearm by felon, and carrying a concealed weapon.

Defendant charged 2with robbing Fashion Avenue, a clothing store, of money and inventory.

Victim picked defendant out of a lineup with "75 percent" certainty.

First, defendant challenges the lineup as impermissibly suggestive and violative of the statutory Eyewitness ID Reform Act (EIRA).

The investigating detective was in the room during the lineup. She didn't make any comments, however, or identify the defendant. This was not impermissively suggestive.

No timely motion was made bast on the EIRA, thus no error.

State v. Watkins. Graham County, Judge Alan Z. Thornburg. Appeal of motion to suppress.

Police received anonymous tip about a drug trafficking car, described as a mid-sized purple car with a Georgia license plate. The car changed lanes without indicating. On seeing the cops, a purple Chevy slowed down and stayed below the speed limit. Ran his plate and found it belonged to a person with warrants. They could tell the driver was not the owner. The driver appeared "really nervous." The police pulled him over. At the stop, the driver got out of the car and approached the police. Driver said he didn't have a license.

Checked passengers of car. None was the owner with warrants. Conducted a consent pat down and found a marijuana pipe. 5 minutes later, the drug dogs came and alerted.  Found 100s of pills. Defendant stated he was driving to exchange the pills for $900 and some marijuana.

Defendant indicted for trafficking. After losing a motion to suppress, the defendant was sentenced to more than 7 years.

Held: Search was lawful.

Stop valid. Failure to signal when changing lanes gives reasonable suspicion to stop if there is heavy traffic. Here, there was not heavy traffic. However, in combination with the tip and the defendant's reducing speed upon seeing police and frequent glances in the rear view mirror, and that the car was registered to another person, gave reasonable suspicion.

Search valid. Held it as a valid search incident to arrest, as defendant was not arrested until after the car was searched. Here, defendant had drugs on him. Reasonable to believe would find more evidence of that crime in the car (not the situation where defendant was arrested for traffic offense, then searched). Further, the dog sniff (and other circumstances) provided independent probable cause.

Friday, May 11, 2012

Three Jurors Still Needed in Williford Trial

The capital murder trial of Jason Williford in Raleigh ended for the week, with still 3 more jurors to pick.

Jury selection takes much more time in capital murder cases than in regular murder cases, as each jury must be vetted on their death penalty views.

Each days costs the state greatly, as the appointed defense lawyers, ADAs, police officers, sheriffs, the judge, and clerks all have to be paid for their time--time that could be spent doing other things.

This concludes the 5th week of jury selection. 13 of 16 jurors are selected, so selection could continue for some time. Most murder cases are concluded--from start to finish--in less than 2 weeks.

Is it worth all this expense? If the case had been tried non-capitally, the defendant could have faced a punishment of life without the possibility of parole--a very harsh sentence--without these needed weeks of jury selection.

The only person capable of preventing that cost was elected DA Colin Willoughby. For some reason, he seems insistent on continuing to create these "high-profile" death cases in the face of repeated jury verdicts of life without parole.

And the price-tag keeps going up...

Friday, May 4, 2012

Life For Chaplin

Today, the jury returned a unanimous life verdict for Isaam Chaplin.

Thursday, May 3, 2012

NC COA Crimnal Decisions, April 17, 2012


State v. Glenn.  From New Hanover County, Judge Phyllis M. Gorham. Appeal of 1st degree kidnapping and AWDWISI.

Facts, a drunk girl in Wilmington got into a random car of someone who asked if she "needed a ride." When she got in, she saw the driver naked from the waist down, with an erection. She tried to get out and he grabbed her and tried to keep her in. In the process, she was drug down the street and sustained road rash, back and neck injuries, and a permanent scar.

A line-up was given and she selected two men. One of them was defendant.

First, state entered evidence of Misty Hooper to law enforcement accusing defendant of raping her at knife point in Colorado. She was deceased and unavailable. This was violation of defendant's confrontation rights under Crawford. Her statement to the police, shortly after the alleged rape, was not a statement for emergency purposes, but was testimonial.

Second,  404(b) errors in court allowing other prior victims to testify about sexual assaults. These sexual assaults consisted of grabbing at breasts and buts. There was no attempt to restrain and it did not occur in the car.

New Trial.

State v. Jackson. From Wayne County, Judge Arnold O. Jones. Appeal of denial of Motion for Appropriate Relief and Discovery Motion.

Defendant was arrested and convicted for possession of cocaine, seized from a toilet during the execution of a search warrant. At trial, his motion to suppress evidence under Franks was denied summarily, due to failure of his lawyer to attach an affidavit. The warrant was issued on the information from a confidential informant. At trial, it was learned that the informant had never worked with police and there were questionable facts about his involvement.

Defendant subsequently filed an M.A.R. arguing his counsel was ineffective for failing to file the motion with an affidavit attached and requesting discovery to present a claim on the unreliability of the informant.

Trial court erred in summarily denying the M.A.R.  Defendant's motion adequately alleged evidence that, if true, would show his counsel was ineffective and the warrant was based on an unreliable informant. A hearing is necessary to determine those matters.


State v. Ramirez.  From Pitt County, Judge Alma Hinton. Appeal of revocation of probation.

Defendant waived his right to court appointed counsel at his first appearance, but did not check the box intending to represent himself. At the hearing, the defendant started to explain why he didn't have an attorney and the judge said, "I'm not interested." Defendant then admitted the violation and was imprisoned.

Here, defendant did not intend to proceed pro se and it was error to force him to. Where a defendant asks for time to hire an attorney but does not say he intends to proceed pro se, the court must conduct an appropriate inquiry before allowing him to proceed pro se.

New hearing
Other cases: 

State v. Barnhart. From Hoke County, Judge Douglas B. Sasser. Appeal of 1st degree burglary, larceny, and assault on a female.

Defendant challenges sufficient evidence that he was the perpetrator. No physical evidence, no confession, and no eye-witness ID.

Evidence was: defendant was seen going to a laundromat nearby an hour after the crime and he was the only person observed by the witness, who said he observed it from midnight until the time the police arrived; property stolen was later found hidden in a box in the laundromat; description was of an black male, the same height as the victim and this is not inconsistent with the defendant's appearance; and finally, defendant purchased items at a convenient store with a $50 bill and a $50 bill was stolen.

This was sufficient evidence of identity.

State v. Conley. From Cabarrus County, Judge W. Erwin Spainhour. Appeal of uttering a forged instrument and attempted obtaining property by false pretenses.

Defendant tried to cash a forged check at Suntrust. Told police that he got the money by doing "odds and ends" work for the payor. Later, told police that someone gave him the check and said they could split the proceeds if he cashed it.

Issue 1: At trial, they also entered evidence of another fraudulent check made out to defendant that was cashed at Wachovia Bank. This was admissible, relevant evidence. Under 404(b), it was similar to the charged conduct and closely related in time. It also undermined defendant's story of how he came to have the check. Further, it was relevant to intent.

Issue 2: No plain error in not instructing clearly that only the Suntrust, not the Wachovia check, formed the basis of the charge.

Issue 3: No plain error in judge answering jury question this way:

Jury Question: "The jury would like to know if the information about the check that was deposited at Wachovia was admissible (confusion about objection—sustained or overruled?) and if so, what date was that check deposited?"

Judge's Answer: "All right. A couple of things. First of all, that check, if you believe it was—if you find that there was such a check—it was not admitted into evidence, that is, the check itself was not; it was admitted into evidence that a check was deposited at Wachovia. The date of that prior check was—all we can tell you is the evidence, and we discussed this in court with the attorneys, it was prior to the alleged event at SunTrust."

Issue 4: Sufficient evidence here.  Challenged evidence that the check was "falsely made." Sufficient evidence that the check was falsely made by: (1) Bank having possession of a real check with the same number; (2) the font being different of this from other check; and (3) statement of business to bank that "that's not our check."

Judge Beasley concurred in the result.

State v. Foust. From Alamance County, Judge James E. Hardin. Appeal of rape conviction.

First, no plain error in admitting evidence of a prior violent altercation between defendant and another man. This was a violent act committed in the victim's presence and was relevant to her state of mind/non-consent. Also explained why she did not immediately call police.

Second, no preserved error in court sustaining objection to question of Burlington Police Officer who admitted Burlington PD wasn't involved in the investigation, that "So, is it safe to say you’ve taken a personal interest in the case?" (because didn't voir dire the answer).

Third, during closing, state said, without objection:

"What happened in the fall of 2008 is no different than a hunter in the field, a beast in the field sitting [sic] a prey, stalking the prey, learning the prey, and at some point in time, eventually taking what he wants, and that’s what happened here."

Court ruled that this was not "name-calling." Rather, just an analogy to a beast.  Not plain error.

Over-objection, defendant argues state commented on defendant's silence saying:

"Make no mistake, this was not two teenagers going out parking behind some area trying to
make out. This was violent. This was forcible. This was brutal. Uncontradicted, mind you, uncontradicted evidence of what he did to her. There’s been no explanation. There’s nothing saying, well, that could have been at a different time."

Held that this was not an impermissible comment on silence, but permissible pointing out that uncontradicted evidence was not rebutted.
State v. Foye. From Lenoir County, Judge Paul L. Jones. Appeal of DWI and DWLR convictions.

Defendant contends failed to prove he was actually driving his car, an essential element. Defendant's car was found at the scene of an accident. Half an hour later, defendant was found, drunk, leaning against a patrol car with an injury to his face and blood on his hands. Initially said he had been beaten up and his car had been stolen, then confessed to driving.

First, this was sufficient evidence. Corpus delecti doesn't save the defendant, as there was other corroborating evidence--the injuries to the defendant and the fact it was his car.

Second, the judge, after jury said it was deadlocked and wanted to be instructed again on reasonable doubt, gave the instruction and then said, "remember, nothing can be proved 100 percent basically, but beyond a reasonable doubt. So you have to decide for yourself what is reasonable, what makes sense.” Ruled this, in conjunction with the entire instruction, did not lower reasonable doubt.

State v. Hewson.  From New Hanover County, Judge Phyllis M. Gordon.

Defendant is in prison for first degree murder. Defendant requested for evidence to be DNA tested wanting testing independent of the SBI lab. Defendant believes proof that the victim's blood was on his pants would show that he was inside the house, not outside the house, which is relevant to heat of passion. The court found that DNA testing was not material to defendant's defense and denied the request.

No error.

State v. Long. From Brunswick County, Judge Ola M. Lewis. Appeal of probation revocation.

Defendant's probation was revoked and he was sentenced to 12 years on a number of different breaking and entering cases.

Defendant appeals challenging his original sentence, noting one of the charges was never indicted nor was an indictment waived by a bill of information. That issue is not properly before the court and the appeal is dismissed.

State v. Smalley. From Union County, Judge David Lee. Appeal of embezzlement conviction.

First, sufficient evidence of embezzlement proven where defendant had authority to write company checks and  paid herself an extra $18,000.

State v. Williams. From Mecklenburg County, Judge Hugh B. Lewis. Appeal of 1st degree murder conviction.

Defendant defended, asserting self defense.

First, defendant called his mother, who testified that defendant had a "peaceful nature." No error in allowing the state to cross her on defendant's prior robberies and prior pistol whipping of a person under 404(a)(1), including knowledge of juvenile offenses. Mother's statement opened the door by placing a pertinent trait of his character at issue.

Second, no plain error in witness referring to another person who was present during the crimes, known as "Black," as being in prison for murder.

Defense Shows Chaplin's Non-Violent Past

The evidence portion of the sentencing hearing for Isaam Chaplin ended yesterday in Greensboro. Parties will be giving closing arguments today and the jury will begin deciding if he should receive life without parole or die for shooting a armored car driver during a robbery.

Teachers, family members, and friends took the stand testifying that Chaplin was never a violent or angry youth and has no significant criminal history, pleading for his life.

Tuesday, May 1, 2012

Isaam Chaplin, Guilty of First Degree Murder

Isaam Chaplin
In Greensboro, a jury just found Isaam Chaplin guilty of the murder of an armored truck guard during a robbery. The killing occurred around Christmas time at the Old Navy in 2008.

Chaplin used to work at the old Navy and was linked to the killing by partial DNA evidence, partial fingerprint evidence, and other witnesses.

A sentencing hearing will now begin on whether Mr. Chaplin should be sentenced to death or life without the possibility of parole.