Tuesday, December 23, 2014

Death Penalty Trials, 2014

Eight cases were tried capitally before a jury in North Carolina last year.

Three cases ended in death:

Juan Rodriguez, Forsyth County.
Jonathan Richardson, Johnston County.
Bernard Lamp, Iredell County

Four cases ended in life without the possibility of parole.
Justin Hurd, Mecklenburg County.
Brian McQueen, Lee County.
Armand DeVega, Wake County.
Cedric Hobbs, Cumberland County.

One Case ended with a hung jury on the issue of guilt.
Demarcus Ivey, Mecklenburg County.

Friday, December 19, 2014

Cedric Hobbs Gets Life in Cumberland County

After the State spent three months trying to get death against Cedric Hobbs, a jury hung on the issue of punishment, resulting in a sentence of life without the possibility of parole. The press is reporting the jury was hung 11-1 for death.

At sentencing, Hobbs told the victim's family: "I apologize most to Mrs. Harris' family," he said. "I know they don't want to hear me talking. I know they probably think I'm just a monster without a heart who don't care. I can see they are good people. I can also put myself in that position because I would want restitution. Even though I know I don't deserve any type of sympathy, I ask for forgiveness from the family and everybody here that hates me right now."

Studies show that the State's decision to proceed capitally costs more than $500,000 more than proceeding non-capitally, rarely results in a death sentence, and even more rarely results in an execution.

Wednesday, September 3, 2014

Innocent Man on NC Death Row for 30 Years.

From the New York Times (story and picture):

LUMBERTON, N.C. — Thirty years after their convictions in the rape and murder of an 11-year-old girl in rural North Carolina, based on confessions that they quickly repudiated and said were coerced, two mentally disabled half brothers were declared innocent and ordered re
leased Tuesday by a judge here.

The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time.

The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.

Wednesday, July 23, 2014

Unanimous Life Verdict in Lee County

Today, a jury returned a unanimous life verdict in the case of Brian McQueen in Lee County. McQueen had been convicted in a robbery-murder of a convenience store clerk. McQueen had a very low IQ and other mental health issues.

Some press about the case from the Sanford Herald, here.

Friday, June 20, 2014

Wake County Jury -- Returns Life Again!

A wake jury returns verdict of Life in case of Armond Devega in late-May.

This is the fifth time in seven years that Wake County Juries have rejected the death sentence, at an enormous expense to the taxpayers of Wake County. No one was sentenced to death from Wake in that time.

The case was extensively reported on. Read the story here

Thursday, May 1, 2014

Conservatives Spend Big to Spread Lies About Justice Hudson

From The News and Observer, Editorial, April 30, 2014.

Big-money PAC presents a scurrilous attack on Justice Robin Hudson

Read more here: http://www.newsobserver.com/2014/04/30/3824124/a-big-money-pac-presents-a-scurrilous.html#storylink=cpy
Justice for All North Carolina is an independent political group out to defeat Democrats in judicial elections in North Carolina. The group might have the distinction now of being responsible for the most repugnant ad in this election cycle.

Justice for All is favored by a right-wing group called the Republican State Leadership Committee. The committee recently provided $650,000 to Justice for All, which has launched a vicious attack ad on incumbent Supreme Court Justice Robin Hudson. The group has a nationwide effort going to defeat judges it deems to be too liberal and to replace them with ideological conservatives.

The RSLC has in the past gotten money from, among others, the Koch brothers, Charles and David, billionaires from a Kansas-based family business involved in oil and a host of endeavors. The Kochs have funded far-flung, and far-right, political advertising all over the United States.

In this latest attack, a black-and-white commercial accuses Hudson of siding with child molesters in one ruling. In fact, the state high court ruled in a 2010 decision that convicted child molesters could be subject to being electronically monitored even if they had been convicted before the monitoring law was passed. Hudson was part of a dissent.

Hudson took the view that applying the new law to those previously convicted fell under the category of an ex-post facto law, a law that institutes retroactive punishment. That might be something conservatives would like to be able to do, but it happens to be unconstitutional in the United States.

Hudson made her call based on her interpretation of the Constitution, exactly what a justice is supposed to do.

But now, Justice for All North Carolina is using a deceptive ad to attack Hudson, a respected incumbent and sound justice, by simplifying what happened and going straight for a claim that Hudson “sides with child predators.” The point is to knock Hudson out of the race in the primary stage. Her opponents are Republicans Eric Levinson, a Superior Court judge, and Jeanette Doran, a lawyer who has worked for a conservative group connected to ... drum roll ... Art Pope, GOP funder-in-chief and Gov. Pat McCrory’s powerful budget director.

Some of the same money sources that helped dump this trash into the living rooms of North Carolinians also supported the unfortunate campaign of incumbent Justice Paul Newby, who defeated a Supreme Court challenge from the respected Judge Sam J. Ervin IV in 2012 thanks to millions of dollars in outside money and the regrettable “banjo ad” talking about how Newby would be tough on crime.

It was amateurish and insulting to the intelligence of voters, but money talked, and Newby won.

The aim of such ads, which are appearing more frequently these days in supposedly nonpartisan judicial races, is to politicize the judiciary, making sure those seeking election to judgeships will pledge their loyalty to conservative ideology.

The ad against Hudson reaches a new low in terms of negative campaigning. It really does. She sides with child molesters?

Ideally, a political party would reject this kind of thing outright. But we doubt the state GOP will do the right thing and reject these maneuvers. No, too many party leaders apparently side with the deceivers. That is unfair to the voters of North Carolina and to the state itself.

Monday, April 14, 2014

NC Supreme Court Criminal Decisions, April 11, 2014

State v. Barnes. Per curiam affirmed, Wayne County, Christopher Barnes. (unpublished COA decision, no legal affect).

State v. Stokes.  Appeal of unanimous unpublished decision of COA vacating conviction for kidnapping.

COA erred in failing to determine, when vacating kidnapping for insufficient evidence, if there was sufficient evidence for a lesser included offense. If so, they should remand on judgment for that offense. Because there was sufficient evidence of attempted 2d kidnapping, reverse for entry of judgment and resentencing on lesser included of attempted 2d kidnapping.

Friday, April 11, 2014

Supreme Court to hear Racial Justice Act Cases Monday

On Monday, April 14, 2014 at 9:30 a.m., the N.C. Supreme Court will hear the cases of four defendants — Marcus Robinson, Tilmon Golphin, Quintel Augustine and Christina Walters — who were removed from death row in 2012 under the N.C. Racial Justice Act. Later this year, the justices will decide whether to uphold the N.C. Superior Court’s decision to resentence the four inmates to life imprisonment without the possibility of parole because of pervasive racial bias in their trials. The state appealed the decision, despite being unable to rebut the compelling evidence presented by the defendants in their 2012 hearing.
The case so far

Robinson, Golphin, Augustine and Walters were the first of North Carolina’s approximately 150 death row inmates to have their cases heard under the Racial Justice Act, a groundbreaking law intended to root out racial discrimination in capital cases. All four defendants proved that racial bias infected their trials and that African-Americans are systematically denied the right to serve on capital juries.

During their 2012 hearings, the defendants presented evidence that prosecutors in Cumberland County, where they were tried, took racially charged notes during the jury selection process (noting, for example, that one juror was a “black wino”). Cumberland prosecutors also participated in a training seminar, sponsored by the N.C. Conference of District Attorneys, where prosecutors from across North Carolina were taught ways to get around the law barring them from striking jurors based on race. After listening to weeks of testimony and sorting through documents and statistics that spanned decades, Superior Court Judge Gregory Weeks said he found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.”

The Racial Justice Act was enacted in 2009, on the heels of the exonerations of three black men on North Carolina’s death row. The law allowed inmates who prove that racial bias contributed to their death sentences to be resentenced to life imprisonment without the possibility of parole. Most of North Carolina’s death row inmates filed claims under the law, after a study from Michigan State University found that qualified black jurors in North Carolina were more than twice as likely as whites to be removed from juries by prosecutors, with the use of peremptory strikes. The Michigan State researchers reviewed 173 capital trials in North Carolina between 1990 and 2010.

Despite the compelling evidence of racial bias presented by Robinson, Golphin, Augustine and Walters — the only four defendants to have their cases heard under the law — state legislators repealed the Racial Justice Act in 2013. However, the claims made under the law are still pending, and the courts will decide whether those cases go forward. Next week’s hearings are expected to address only the four defendants whose cases have been appealed.

Friday, April 4, 2014

Jonathan Richardson Sentenced to Death

Yesterday, a jury sentenced Jonathan Richardson to death in Johnston County. The case was covered extensively in media outlets.

Wednesday, March 26, 2014

Juan Rodriguez Sentenced to Death

Last week, a Forsyth County Jury sentenced Juan Rodriguez to death in the killing and decapitation of his wife. The jury took a little over 2 hours to impose the sentence and rejected all proposed mitigating factors in the case.

There were many reasons to doubt in Mr. Rodriguez' case. A medical examiner placed the time of death in the case after Mr. Rodriguez had already been arrested. Mr. Rodriguez had a well documented history of mental retardation -- and an IQ of 61, which should have made him ineligible for death. The jury rejected this evidence. The jury then rejected strong mitigation evidence of Mr. Rodriguez's low intellectual functioning, his post-traumatic stress from growing up in war torn El Savador in unbelieveable poverty.

Notably, the victim's family opposed the death penalty--opposition which was ignored by the Forsyth District Attorney.

Thursday, March 20, 2014

Three On-Going Capital Murder Trials

Three capital murder cases continue to slog forward:

Juan Rodriguez in Forsyth County. Jury has convicted of 1st degree murder and rejected mental retardation. The jury is currently considering penalty phase evidence.

Jonathan Richardson in Johnston County. Guilt phase closings are expected early next week.

Armond Devega in Wake County. Jury selection is nearing completion.

Thursday, March 13, 2014

Away from the Blog

Sorry I've been away from the blog so long, my few readers. Due to work issues and a trial, I had no time for about 4 months and then just got out of the habit for another 8. I'm slowly updating the cite. As I add in COA and NCSC cases, I will back date them to keep the continuity, as well as the few news items from the past I will add in.

Thanks for your views!

Monday, March 10, 2014

Life in Mecklenburg County

Last week, a Charlotte jury returned a life sentence after convicting Justin Hurd of a gangland assassination, triple homicide, linked to a drug ring. The victims were stabbed and burned. Two of the victims were killed because they were eye-witnesses.

Friday, March 7, 2014

NC Supreme Court Criminal Decisions, March 7, 2014

State v. Joe. Per curiam - digged.

Post on Decision Below. State v. Joe.  On remand from the NC Supreme Court. -- Robert Joe.

Previously held that COA had no jurisdiction to hear state appeal of suppression, on grounds that state's comment amounted to dismissal in open court. That was overturned by the NCSC. It's back on remand to consider the motion to suppress.

Rules that the officer did not have probable cause to order the defendant to stop. Although the defendant threw the drugs after the officer attempted illegal arrest, "when a suspect 'discards property as the product of [] illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of privacy with respect to it.”

As such, the property was not abandoned and the seizure was unlawful.

State v. Jones. Affirmed. Martin and Hudson dissent (in part).
Post on Decision Below: State v. Jones and White.  State appeals non-suit ruling on obtaining property by false pretenses  -- Eric Jones and Jerry White, Mecklenburg County.

After verdict of guilty, trial court threw out all the obtaining property by false pretenses charges and trafficking in ID theft charges. The only conviction that stood was an ID theft conviction against Jones. State appeals.

During a traffic stop of Jones, police found credit cards for four people who had been checked in to a nearby hotel by White. Evidence shows Jones used one of the credit cards at Tire Kingdom to get new tires for his car.  Sufficient evidence of OPFP.

No error in trial court dismissing OPFP: indictment didn't list what was stolen or the value. Listed only "services" from Tire Kingdom. Defective.

No error in trial court dismissing trafficking charges. Indictment didn't list name of person (or that the name is unknown) who the IDs were transferred to. Defective.

Elmore dissents.

State v. Howard. Per curiam affirmed.
Post on Decision Below: State v. Howard. Appeal of possession of firearm by felon. -- Cabarrus County, Mason Howard.

Defendant, during traffic stop, was arrested on an outstanding warrant. Police brought drug-sniffing dogs and then found drugs and guns.

First, no error in admitting another officer's testimony that defendant, on a previous occasion, fled from that officer and threw a gun in some bushes. Defendant didn't preserve the issue under 404(b), because counsel initially said he was moving under 404(b), but then the Court asked if he was objecting under 403 and counsel said yes. Then appellate counsel only argued under 404(b).

Appeal dismissed.

Thursday, February 20, 2014

Death Sentence in Iredell County

Bernard Lamp was sentenced to die for the 2008 murder of Bonnie Lou Irvine.

According to press reports, Irvine responded to a craigslist ad from Mr. Lamp and was not seen again, until he was found driving her car and she was found buried in a shallow grave. Press reports that the defense argued there was no direct evidence linking Lamp to the murder and that there was no evidence that a 1st degree murder was committed.

When he was convicted of first degree murder, Lamp protested his innocence and tried to fire his attorneys. He eventually recanted, but not before serious questions as to his competency were raised.

Friday, January 24, 2014

NC Supreme Court Criminal Decision, Jan. 24, 2014

State v. Whittington. -- Glenn Whittington, Nash County, Judge Sumner.

COA Decision Below: State v. Whittington.  Appeal of trafficking convictions, for sale, delivery, and possession.

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.
Supreme Court: Reversed decision on grounds that defendant never adequately raised or preserved the confrontation issue at trial. Defendant's only objection at trial was not that he was not provided notice, but that 90-95(g) notice provisions were invalid under Melendez-Diaz. This is not the case. NC Notice and Demand Statute is valid. No evidence that notice was not given and Defendant did not object to the notice and demand the SBI agent appear in court.

Tuesday, January 21, 2014

NC COA Update, Jan. 21, 2014

State v. Carlton. District Court erred in amending citation to charge defendant with a different charge. Can amend, but not to charge a new crime.

State v. McGrady. No error in refusing, under 702, to allow defendant to put on "use of force" expert.

State v. McLean.  No error in refusing to allow pre-trial testing for DNA (or absence of DNA) on shell casings. Court found that such absence would not be relevant to defendant's alibi defense and the purpose of the statute is to test for the presence of DNA, not the absence of DNA.

State v. Stepp. (Joshua Stepp, Wake County). New trial ordered in murder case. In felony murder (sex assault) case, defendant requested an instruction of defense for digital penetration "for medical purposes", as his testimony was that the act was done for cleaning. Court erred in refusing to give the instruction.

State v. Smathers. While no probable cause for a stop, no error in officer stopping under the "community caretaker" doctrine to check on a woman who had hit a deer. (Turns out, she was drunk...)

State v. Williams. In sexual exploitation of a minor case, sufficient evidence where Defendant set up a web-cam to watch the victim "dance in her pajamas." No error in closing courtroom during display of graphic images. Downloading of image qualifies as "duplication" for second degree exploitation (N.C. Gen. Stat. 14-190.17).

Tuesday, January 7, 2014

NC Court of Appeals Criminal Decisions, Jan. 7, 2014

State v. Dahlquist. Appeal of sentencing in second degree murder case. -- Allegra Dahlquist, Wake County, Judge Ridgeway.

First, Defendant alleges trial court erred in failing to find mitigating factors of age and support system in the community. Defendant was 17 and an expert testified about her immaturity.  "By its use of the term ‘immaturity,’ the General Assembly contemplated an inquiry which is ‘broader than mere chronological age’ and which is ‘concerned with all facts, features, and traits that indicate a defendant’s immaturity and the effect of that immaturity on culpability." Not error to fail to find this when the facts of the case show Defendant was involved in planning the killing. Further, the fact Defendant had a large family does not prove existence of a support system in the community.

Second, no error for trial court to rely on evidence from co-defendant's trials because Defendant, herself, relied on such evidence in her presentation.

State v. Epps. Appeal of voluntary manslaughter conviction. -- Adrian Epps, Gaston County, Judge Lewis.

During fight, Defendant got a kitchen knife and killed a man.

First, no error in failing to instruct on involuntary manslaughter. Here, stabbing with a knife is not the kind of attack that was not ordinarily a danger to human life or merely criminal negligence. Defendant went and got a knife. His reaction was not instinctive or reflexive, but was voluntary.

State v. McKinney. Appeal of denial of motion to suppress -- Walter McKinney, Guilford County, Judge Wood.

Complaint lodged with police about heavy traffic at a house and drug deals in a parking lot. Police stopped a car that went to the house and left six minutes later. Found $4,258 in cash and 7 grams of marijuana. Had a phone with texts with someone named Chad. Used this info to get a search warrant and search the house, finding drugs and arresting the Defendant.

Defendant challenged search, alleging the search warrant was not supported by probable cause.

Held: Search unlawful.  While the evidence all shows the person in the car had recently been in a drug transaction with someone named Chad, there was no evidence that showed there would be drugs at Defendant's apartment.

State v. McRae. Appeal of first degree kidnapping. -- Jamal McRae, Robeson County, Judge Locke.

Held: Insufficient evidence of 1st degree kidnapping, where underlying felony listed in indictment was larceny. State failed to provide any evidence that the car was worth more than $1,000. Insufficient evidence of felony larceny, thus insufficient evidence of kidnapping.

State v. Minyard. Appeal of sex offense and indecent liberties conviction. -- James Minyard, Burke County, Judge Martin.

First, sufficient evidence of  attempted sex offense where victim testified that defendant put his penis in his butt, even though wasn't able to specifically describe penetration. This was sufficient to show intent.

Second, sufficient evidence of 5 counts of indecent liberties, where victim testified that Defendant touched him "four of five times". Defendant argues that this is insufficient proof of 5 times and insufficient to establish that there were separate incidents. Court disagrees.

Third, no error in failing to hold a capacity to proceed hearing. During jury deliberations, defendant took a handful of pills and drank 80 ounces of beer.  "Because Defendant voluntarily ingested these substances in a non-capital trial, he voluntarily waived his constitutional right to be present."

State v. Moir. Appeal of denial of removal from sex offender registry. -- James Moir, Catawba County, Judge Boner.

In 2001, Defendant was found guilty of two counts of indecent liberties. In 2012, he filed a petition for termination of sex offender registry. The court denied.

Held: Court improperly denied termination from registry.

Under  N.C. Gen. Stat. § 14-208.12A, a Defendant can apply for relief from registration 10 years after the date of conviction. The court may grant relief if the defendant hasn't been arrested for other registrable offense, relief complies with Federal law, and is not a current threat to safety. Trial court then found that touching the genital areas of a minor counts as "abusive sexual contact" under Federal law. Abusive sexual contact, under federal law, mandates registration of at least 25 years.

Court held that you evaluate, under the federal rules, the elements of the crime, not the underlying case facts. As a matter of law, indecent liberties is not abusive sexual contact.
State v. Rayfield. Appeal of child sex case. -- Douglas Rayfield, Gaston County, Judge Poovey.

First, no error in failing to suppress fruits of search warrant. Victim describe multiple assaults by her stepfather and described pornography he played during the assaults. This was the basis for the search warrant. Held that, even though the assaults occurred 3 1/2 years previously, they were not too stale, because the activity took place over a number of years rather than was a single isolated incident, to give probable cause for the warrant to be issued.

Second, no 404(b) error in admitting evidence of adult pornography seized in his home and evidence of a different 14 year old who had "voluntary" sex with the Defendant.  Pornography was relevant as victim's testimony was that Defendant played adult and child pornography during assaults and proper limiting instructions were given to reduce risk of unfair prejudice.  On the other 14 year old, defendant did not clearly cite 404(b) during his objection and has waived that issue (but would have lost anyway, as they are substantially similar to the charged conduct and admissible under 404(b)).

State v. Rodelo. Appeal of trafficking conviction -- Crecencio Rodelo, Randolph County, Judge Long.

Police went to a warehouse. A man came out, said he worked there and consented to the search. Police found a million bucks and a bunch of cocaine. The defendant was sleeping in the tractor-trailer.

First, no error in denying motion to suppress.  Defendant, who did not possess any ownership interest in the warehouse, did not have standing to challenge the search. Further, the agents could reasonably assume that the warehouse worked had authority to give consent.

Second, sufficient evidence of constructive possession. To prove constructive possession, you must prove defendant was present and that other incriminating factors exist that show the drugs were his. Here, the other factors were: (1) defendant hid from police when they entered the warehouse; (2) defendant knew where the money was hidden; (3) the entire warehouse smelled of cocaine.

State v. Sherman. Appeal of first degree murder conviction. -- Travis Sherman,  Wake County, Judge Ridgeway.

Appeal of denial of for cause challenges to two jurors: (1) a juror who indicated he would form opinions during trial, rather than waiting until the end, and (2) a juror who was a Marine due at Quantico before the trial was scheduled to end.

First, to preserve a challenge for cause, you must: use all your peremptories, renew your challenges, and state you would strike the juror if you had more peremptories. Defendant did that here.

Second, no error on juror #1, as the juror said he would do his best and follow the law; as to juror #2, no basis in law for this denial of cause as error, as no evidence #2 was unable to render a fair and impartial verdict.

State v. Snelling. Appeal of larceny, robbery and kidnapping convictions.-- Edward Snelling, Wake County, Judge Fox.

First, no error in instructions. State does not have to prove actual possession of a firearm. If the robber holds out to the victim that he has a gun, he is presumed to possess a working firearm for robbery with a dangerous weapon, unless the defense can prove otherwise.

Second, on sentencing, where Defendant stipulated to the PRL and sentencing points, no requirement for judge to colloquy defendant on that on the record (as required in a plea situation).

Third, error to sentence as PRL III because the state did not provide notice of probation points and defendant did not waive such notice.