Friday, June 29, 2012

Gov. Purdue Vetoes Bill that Guts the Racial Justice Act

The Republicans and 5 cowardly democrats voted to take away the prying eyes of the courts from checking the power of the state.

A judge found that that there was widespread racial discrimination in the selection of juries across the state--that blacks were being systemically excluded from serving on juries. The legislature responded by talking power to truth.

Gov. Purdue signing the RJA in 2009.
Our fearless Gov, who continues to stand up to these bullies, issued the following statement. I thought it was worth reproducing in full:

“As long as I am Governor, I will fight to make sure the death penalty stays on the books in North Carolina.  But it has to be carried out fairly – free of prejudice.

Three years ago, North Carolina took steps to achieve this result by passing the Racial Justice Act.  In response to the enactment of this historic law, our State has rightfully received national acclaim for taking a positive and long overdue step to make sure racism does not infect the way the death penalty is administered.

Last year, Republicans in the General Assembly tried -- and failed -- to take North Carolina backwards by passing a bill that would have undone the Racial Justice Act. This year’s Senate Bill 416 is not a “compromise bill”; it guts the Racial Justice Act and renders it meaningless.

Several months ago, a North Carolina superior court judge ruling on a claim brought under the Racial Justice Act determined that racial discrimination occurred in death penalty trials across the State over a multi-year period.  The judge’s findings should trouble everyone who is committed to a justice system based on fairness, integrity, and equal protection under the law.  Faced with these findings, the Republican majority in the General Assembly could have tried to strengthen our efforts to fix the flaws in our system.  Instead, they chose to turn a blind eye to the problem and eviscerate the Racial Justice Act.  Willfully ignoring the pernicious effects of discrimination will not make those problems go away.

It is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”

Thursday, June 28, 2012

NC Supreme Court Criminal Decisions, June 14, 2012

State v. Barrow. Affirmed and digged.

COA blog post here.

State v. Beckelheimer.

COA blog post here.  COA found it was error to allow 404(b) testimony in sex offense case of prior sexual conduct between defendant (at age 15) and another boy (age 11). "Sexual exploration with a child in the same general age range is quite a different thing than a sexual  act perpetrated by force by a 27 year old man upon an 11 year old child."

SC reversed finding that these acts were sufficiently similar and temporally close. Victims ages were close, both occurred in defendant's bedroom where video games were played, both involved similar progression of sex acts. This fits for modus operandi.

State v. Bradshaw. Appeal of unpublished COA decision.

Trial court denied defendant's motion to dismiss trafficking in cocaine and possession of firearm by felon charges, on the issue of constructive possession.

Held: Sufficient evidence where the cocaine and rifle were found in a bedroom that also contained pictures, a father's day card, a cable bill, a receipt, and a pay-stub linking the room to the defendant. Several individuals were found inside the 3 bedroom house.

Hudson dissents.

State v. King. Upheld COA decision (blog post here).

COA upheld trial court grant of defendant's "motion to suppress evidence of repressed memory, recovered memory, traumatic amnesia, dissociative amnesia, psychogenic amnesia, and other synonymous terminology."

No error in suppressing such testimony under the old Rule 702 (for more on this, see my recent post on amendments to rule 702), Howerton, and Rule 403.

Court goes on to state that it is not making a categorical rule that repressed memory evidence cannot be used, nor that expert testimony is always necessary to put on such evidence.

State v. Moore.

Issue: a State's witness testified that: "A. Yes. I went to [defendant‟s] residence . . . and I took him into custody. Once he was in custody, I read him his Miranda Rights, but he refused to talk about the case at that time." There was no objection.

Held: This was error, but not plain error. It is error to comment on silence. However, since there was no objection, it only requires a new trial if it is "something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done." his is not.

State v. Otto

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

Reversed, finding reasonable suspicion for the stop.  Totality was that the driver was weaving within a lane "continuously and constantly" over 3/4 of a mile at 11:00pm on a Friday not. This is not a single  weave like State v. Peele or 3 weaves over 1 1/2 miles like State v. Fields. Reasonable suspicion existed.

State v. Salinas. COA blog post here.

COA remanded a suppression for a stop, based on everyone saying repeatedly at hearing that probable cause, rather than reasonable suspicion, was necessary for the stop. Supreme Court affirms.

State v. Sweat

COA blog post here

Issue: did COA err in holding that state's evidence satisfied corpus delecti?

No. Only evidence for 2 of the sex acts was defendant's confession. Where there is no evidence of injury or loss, under corpus delecti, there must be "strong corroboration of essential facts and circumstances embraced in the defendant‟s confession." Here, there was, because defendant had "ample time to commit the crime," confessed to details only knowable by the perpetrator (but, of course, not corroborated by anything else...), defendant committed other, similar crimes, and the victim described the incidents in extrajudicial statements that were considered under rule 104(a), but not admitted as evidence.

Issue 2: did COA err in ordering new trial on jury instruction issue?

Yes. No error in including fellatio in the instructions on all four counts, as evidence of this was presetned.

State v. Towe.

COA blog post here. COA found that it was plain error to allow a expert to testify in a sex abuse case that abuse occurred, in the absence of any physical evidence.

SC Affirmed, but noted that the COA used the wrong plain error standard that "that “it [was] highly plausible that the jury could have reached a different result” absent the expert testimony."  The correct standard, recently announced in State v. Lawrence, is if "the jury probably would have returned a different result."

State v. Williams.  COA found that stop and search were legal.

Issue: did the officer have reasonable suspicion to prolong the stop for the canine search? Here, the totality of circumstances gave continued reasonable suspicion.

In Myles, after learning the license/registration checked, the cause for the original stop was at an end. The officer remained because the occupants were nervous and gave conflicting stories about when their rental car was due. The Court held that this was not reasonable suspicion to prolong the stop.

Here, the driver and defendant gave conflicting stories about their origin and destination, said they were cousins then said they just say that because they have a close relationship, one said the Defendant owned the truck and defendant said it was her friends, and the traffic was interstate. These combined factors give rise to reasonable suspicion to prolong the stop.

One interesting sidenote, is that this case affirms the Felana/Myles line of cases, which had never been tested in the S.C.

Wednesday, June 27, 2012

NC COA Criminal Decisions, 6/19/2012


State v. Davis. Johnston County. 1st degree sex offense. -- Larry Davis, II.

In child sex assault case, state offered 404(b) evidence that defendant wrote a letter to an adult woman about his describing forcible anal sex with her. This was not sufficiently similar (with an adult woman versus charge of forcible anal sex with a 6 year old boy) to be admissible under 404(b).

Second, it was error, on cross of defendant, to ask about his visits to a non-testifying psychologist and asking, "Isn't it true that when you were with Milton Kraft, the MMPI results were marginally valid because you attempted to place yourself in an overly positive light by minimizing faults and denying psychological problems?" and "Does it indicate that it says, a
prominent elevation on the psychopathic deviant scale?".

It was impermissible to ask insinuating questions of supposed facts to which there is no evidence.  This was error and defendant did not open the door by mentioning, on redirect, that he was examined by Dr. Kraft.

Such errors were prejudicial. New trial.

State v. Flood. Alamance County. First degree murder. -- Lawrence Donnell Flood.

Court reversed on 404(b). Defendant was convicted for shooting a 16 year old in the back of the head during a drug deal. State offered evidence under 404(b) that, over 10 years before, defendant had killed a man he caught in bed with his girlfriend by shooting him in the back of the head. The trial court admitted it as proof of intent.

The COA held that it was not sufficiently similar to be relevant: it was 10 years prior, the defendant was the same age as the prior victim, the circumstances (drug deal / heat of passion) were different, they were in different states, the prior shooting had 2 shots, different caliber guns were used. The court also noted the weakness of the state's trial evidence and found the admission was prejudicial.

New trial.

State v. Whittington. Nash County. Appeal of trafficking convictions, for sale, delivery, and possession. -- Glenn Whittington.

First, indictments by sale and delivery were defective as it did not name who defendant sold or delivered to.

Second, it was error to admit a lab report showing it was opium, where the analyst was not present at trial. Under statute, if the state gives notice of intent to use a lab report without the analyst, the defendant must give notice of objection 15 days before trial. No evidence was presented that defendant received the lab report or waived the objection.

New trial.

Other Cases.

State v. Brown. Alamance County. Burglary and larceny. -- Marcus Brown.

First, sufficient evidence of burglary. Must prove breaking, entering, at night, of occupied dwelling house.

Issue #1 is whether it was night. Common law definition is after sunset, before sunrise "when it is so dark that a man's face cannot be identified except by artificial light or moonlight." Civil twilight began at 5:47am. Defendant could have only committed the crime between 10:00pm and 6:00am, as he was back at his girlfriend's house at 6:00am. It was a 27 mile drive from the break-in location to his girlfriend's house. Held that this was sufficient evidence to show the break-in occurred at night.

Issue #2 is identity. Defendant convicted under the doctrine of recent possession. Defendant was caught with the items within hours of the break-in. This was sufficient.

Second, no plain error in failing to instruct the jury on the elements of the doctrine of recent possession on the lesser included count of felony breaking and entering. The doctrine was explained on the other two charges. No prejudice.

State v. Braswell. Watauga County. Appeal of DWI and leaving the scene of an accident conviction. -- Chad Braswell.

First, defendant took a plea in district court to DWI and the leaving the scene was dismissed. He then appealed to superior court the DWI conviction. No indictment was issued on leaving the scene, thus no jurisdiction. As such, that count is vacated.

Second, no error in denying defendant's motion to suppress his statements under Miranda. A traffic stop does not place a person in custody for Miranda purposes. Asking a few questions and having a person conduct balancing tests is not a custodial interrogation. No error.

Third, sufficient evidence of impairment where his blood test was positive for Carisoprodol,
Meprobamape, Diazepam, Nordiazepam, and Methadon and he failed standardized field sobriety tests.

Fourth, no plain error in failing to instruct the jury that the jury had to find that the cause of impairment was the substances.

State v. Gorman. Davidson County. Appeal of probation revocation.--  Richard Gorman, Jr.

Issue was probation violation was timely filed. Because the record is not clear, it is remanded for further findings.

State v. Mills. Iredell County. Appeal of AWDWISI and robbery with a dangerous weapon. -- Kenneth Mills.

First, the deadly weapon here is a lawn chair. There was sufficient evidence for this where victim testified that he was struck by something "other than a fist" and a lawn chair was found in the grass near the driveway, that was bent and had  blood on it. That the lawn chair was a "deadly weapon" can be inferred by the seriousness of the victim's wounds.

Second, no plain error in allowing detectives to testify that the lawn chair had "blood" on it, even though no testing was done for blood.

State v. Robinson. Mecklenburg County.  Appeal of possession of cocaine possession conviction. -- Jerome Robinson, Jr.

Challenge to denial of motion to suppress. Valid pat-down search where gun seen. During patdown, officer "felt something hard between the defendant's buttocks." This gave rise to probable cause for a more intense search. It was not an impermissible strip search, where defendant was taken to the officer's car, shielded from public view, and searched by looking down pants (not making him pull his pants down).

Judge Elmore Dissents, calling this a roadside strip search.

State v. Shareef. Cumberland County. Appeal of two counts first degree murder, two counts attempted first degree murder, AWDWIKISI, assault with a deadly weapon, and two counts of felony larceny. -- Abdullah Shareef.

Defendant stole a car, ran over a man walking in the road, stopped, reversed and tried to hit him again, then got out and stabbed him in the head and face 8-10 times with a pencil.

Then, he hit drove down another person, dragging him down the street, seriously injuring him.

Defendant then drove around, terrorizing other people, running over another person and stealing his truck. Then drove the truck in to another person. Defendant eventually crashed and ran away.

Defendant asserted insanity and diminished capacity at trial.

First, sufficient evidence of premeditation and deliberation. Sufficient evidence of deliberation, despite expert testimony otherwise, where defendant targeted victims and drove them down with his car.

Second, trial court did not err in refusing to allow defendant to call deputies to describe him acting crazy while in jail. This was relevant to show he sufferred mental illness and was insane. However under 403, it was duplicative, as substantial evidence of mental illness was presented and this was 5 years after the crime.

State v. Yancey. Burke County. Appeal of motion to suppress in breaking and entering. -- Wesley Yancey.

Officer approached defendant, who was sitting on the curb. Asked his name and defendant appeared nervous. Officer patted down defendant, then asked to look in his back. Defendant said, "sure" and then he found stolen property from an breaking and entering. The officers then gave the defendant a ride, telling him he was free to leave. Officers then told him about the breaking and enterings and said if he cooperated, he would not be arrested that day, otherwise, he would. Defendant confessed.

First, defendant not in custody and no Miranda problems, even though he was 17.

Second, search of the backpack was consensual and legal.

Tuesday, June 26, 2012

NC Court of Appeals Criminal Decisions, 6/5/2012


State v. Ross.  Cleveland County. Attempted bribery of a juror, felony obstruction of justice, and habitual felony.

First, habitiual felon count was for firearm by felon, but that was not charged. Since the underlying charge was not charged but rather crimes committed after the habitual felony indictment were issued, the court lacked jurisdiction to enter verdict on habitual felon. That count is vacated.

Second, trial court erred in sentencing attempted bribing a juror as a Class F felony. It is a Class G felony.
State v. Sharpless.  New Hanover County. Appeal of 1st degree murder, robbery, burglary, and AWDWIKISI.

Court erred in admitting an anonymous 911 phone call that tipped the police that the 3rd victim in the hospital (the defendant) should be treated as a suspect involved in a drug robbery.

This was hearsay. While the state may put in hearsay "against a defendant may become admissible to explain or rebut other evidence put in by the defendant himself," such right is not unlimited.

State argues defendant opened the door, by asking an officer about an initial BOLO taken off the 911 calls describing the suspect as a black male in a red hoodie. While defendant may have opened the door to further evidence regarding his involvement in the robbery, he did not open it to improper hearsay statements.

New Trial.
Other Cases 

State v. Carver. Gaston County. 1st Degree Murder. LWOP.

Victim found dead beside her car on the shore of the Catawba River. Defendant and his cousin were fishing close-by at the time the victim was discovered and near the time she was strangled to death. DNA in the car matched Carver and his cousin's profile. Carver denied ever touching the car. Defendant found guilty of 1st degree murder. Defendant described the victim as a "little thing," even though he maintained he'd never seen her.

First, this was sufficient evidence.

Second, during deliberations, the jury asked, "Are we still to consider acting in concert?" They were not instructed on this. Instead of saying "no," the court, without object, just re-read the instructions. This was not error and not preserved.

Hunter dissents, saying there was not sufficient evidence. Cannot reasonably infer guilt from the circumstantial evidence of touch DNA, which is less reliable, on the outside of the car. His cousin's touch DNA was found inside the car. Wasn't found on any ligatures.

State v. Glenn. Rowan County. Possession of Cocaine / Habitual Felon. 7 year sentence.

Detective went to defendant's home to serve a warrant for his arrest. He followed the defendant into the home after defendant answered the door. Defendant looked like he was concealing something. Arrested him. Threatened him with pepper spray to open his mouth and then retrieved bags of drugs out of his mouth, with 0.03g of cocaine inside.

First, no fatal variance in indictment. Indictment said .1g of cocaine, truth is .03g. Waived at trial, but still we find it has no merit.

Second, defendant complained about counsel to judge and judge did not hold a hearing on this. No showing of actual conflict of interest. The complaints were about counsel trying to get him to take a plea, working on 50 hours on the case, and poor cross examination. These statements of general dissatisfaction do not arise to basis for substitute counsel. Some complaints about communication, but nothing to show the conflict rendered counsel ineffective.

Third, court denied defense motion for a mistrial when three LEOs walked through the jury assembly room in the presence of jurors and no inquiry for prejudice was held. This was not sufficient to assume the jury was prejudiced.

State v. Herman. Catawba County. Sex offender statute.

Defendant challenged portions of the sex offender statute--claiming that the prohibition of being on unlawful premises 14-208.18(a)(2) was vague and violated his 1st amendment right to free exercise of religion and association.

The state appealed, but the court found no jurisdiction as the indictment failed to allege all elements necessary -- that defendant knowingly was on school property after being adjudicated a sex offender.

State v. Hunt. Cabarrus County. Appeal of permanent "no contact order" in rape case involving his daughter.

First, no NC constitutional problem with no-contact order. The NC Constitution, Art. XI, Sec. I, states that: " The following punishments only shall be known to the laws of this State: death, imprisonment, fines, suspension of a jail or prison term with or without conditions, restitution, community service, restraints on liberty, work programs, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State."

Held that this was a civil remedy, not punishment, so inapplicable.

Second, no due process violation, even though defendant was not provided with advance notice that the state would seek this at sentencing. No notice is included in statute. By the charge, defendant was notified of all potential criminal and civil penalties.

State v. Jones.  Mecklenburg County.

COA previously ordered a new trial, finding plain error in admitting lab report without testimony of an analyst, under Crawford. On cert., state noted that it had provided intent to produce the report to the defendant under 90-95(g). The court allowed the amendment.

First, Under 90-95(g), if the state notifies the defendant 15 days before that it intends to use the report under 90-95(g) without calling the analyst and there is no timely written objection, it is admissible. That happened here, so no error in admitting it.

Second, no IAC in failure to file motion to suppress the cocaine, found in search incident to arrest. Defendant ran/struggled when confronted by police. Gave authority to arrest and right to search incident to arrest. No error.

State v. Lineberger. Forsyth County. Appeal of lifetime Satellite Based Monitoring (SBM) order.

Defendant took an Alford plea to indecent liberties and possession of firearm by felon and was sentenced to 3-4 years. Later, he was set for satellite-based monitoring hearing for life.

First, defendant gave oral notice of appeal of this issue. That is insufficient for an SBM order. Must give written notice. (Court grants cert anyway).

Second, appellate attorney files Anders brief saying he can find no good issue. Court agrees.

State v. Manning. Pitt county. Appeal of lifetime Satelite Based Monitoring (SBM) order.

Defendant was determined as a recidivist under 14-208.40(a) and sentenced to lifetime monitoring.

First, defendant challenges DOC's determination that he was a recidivist (submitted) as depriving him of due process because it did not list both prior offenses. The wording "you meet the criteria of recidivist under 14-208.40(a)" gave him adequate notice for due process purposes.

Second, SBM does not unconstitutionally infringe on his right to travel. Government may interfere with right to travel if "necessary to promote a compelling government interest." This is.

State v. Miles. Greene County. AWDWISI and possession of a weapon by a prisoner. Attacked a guard with a razor blade doing serious injury.

First, no error in requiring defendant to wear prison garb and shackles throughout the trial. Defendant was under high security control for demonstrated assaultive behavior. He was on the highest level.
Prison garb was not adequately preserved.

Chaining generally violates due process. However,  “[a] trial judge may order a defendant or witness subjected to physical restraint in the courtroom when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant’s escape, or provide for the safety of persons.” Here, a hearing was held and such findings were made.

Second, no Blakely error in failing to submit to the jury the sentencing point of crime committed during incarceration. Defendant testified that he was incarcerated. Such admission allowed addition of the point without submitting it to the jury.

Thursday, June 14, 2012

House Votes to Repeal the Racial Justice Act

5 Democrats broke party ranks to vote with the Republicans to repeal the Racial Justice Act and forever outlaw analyzing discrimination in the capital justice system.

“There is absolutely no question at all under the law that this bill repeals the Racial Justice Act,” Rep. Deborah Ross said. “Just don’t go home and lie about it.”

Why repeal? Because that rock got uncovered and it was a little too icky.

Another bad day for everything good about North Carolina, courtesy of this legislature that is wrecking our state at the General Assembly. I guess they want to legislate away global warming, why not the existence of racism too? Can we declare poverty over while we're at it?

Wall of Shame: Democrats who love racism more than their party. 
Shockingly, all old white men.

Jim Crawford, Granville/Vance
William Brisson, Bladen/Cumberland
Bill Owens, Cam/Curr/Pas/Tyr

Dewey Hill, Brunswick/Columbus

Tim Spear, Cho/Dare/Hyde/Wash

Monday, June 11, 2012

Republicans at G.A. Want to Ignore Racism

Skip Stam: I Support Racial Discrimination
SB 416 is on the calendar today in judiciary committee.

The Bill is yet another attempt to repeal the racial justice act.

After a full hearing, in Cumberland County, Judge Weeks ruled that the defendant "introduced a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina. The evidence, largely unrebutted by the State, requires relief in this case and should serve as a clear signal of the need for reform in capital jury selection proceedings in the future.”

What should we do in the face of overwhelming evidence of racism? According to the Republicans, we should pass a law to prevent the community from investigating ever again and forbid the judiciary from making ruling to correct it.

Bad government continues. Like rising sea tides, the Republicans think that they can legislate more ignorance. Thankfully, we have strong governor who has stood up to them before and hopefully will again.

Thursday, June 7, 2012

Life Verdict in Wake County

Jury returns verdict of life without parole to Jason Williford for the rape and murder of Kathy Taft. The verdict spares him from the death penalty.

See the press.

Tuesday, June 5, 2012

Jury Convicts Bullard on 2nd Degree Murder

John Bullard, from the Robesonian
In Robeson County, the case of John Bullard ended in a verdict of 2nd degree murder. The jury rejected the state's claim of 1st degree murder. If he had been convicted of 1st degree murder, he could have faced the death penalty.

The case centered around shots fired between two vehicles and who shot first.

See story in the Robisonian.

Monday, June 4, 2012

Williford Guilty of 1st Degree Murder

As you probably have heard, the jury returned a verdict of guilty of 1st degree murder in the case of State v. Williford in Raleigh. Williford has now been convicted of the rape and murder of Kathy Taft.

His father testified today, begging the juries not to kill his son, saying ""I've loved Jason unconditionally," Williford's father, Keith Williford said. "I'll never quit loving him." He told jurors how remorseful Jason was over his alcohol-fueled acts and told them of how he was now leading Bible studies in jail, trying to make someone useful of his destroyed life.

The defense is asking the jury to spare Jason of death and sentence him to life in prison without the possibility of parole.

Friday, June 1, 2012

Jury Out In Williford

In Raleigh, the evidence is in and the jury is out deliberating, since yesterday afternoon.

If the jury returns a verdict of guilty of 1st degree murder, a sentencing hearing will be held to determine if Jason Williford should receive life without parole or a death sentence for the murder of Kathy Taft.

Williford's counsel put on extensive evidence of his serious mental illness, sexual addiction, and drug addiction. This evidence is relevant to whether Williford had the ability to form the intent to kill that day.