Charlotte Criminal Lawyer Blog

North Carolina Moves to Protect Unborn Children

Published on: December 2, 2011 | On behalf of Arnold & Smith, PLLC

Criminal Post #2 image.bmp This month, on December 1, 2011, the North Carolina legislature passed the North Carolina Unborn Victims of Violence Act. WBTV reports that the new law will hold an individual criminally responsible for the death of an unborn baby which results from an attack on the mother. The law was sparked by the vicious murder of several pregnant women whose murderers were not ultimately held accountable for the death of the fetuses. According to an article in the Winston-Salem Journal, the law will be named after an unborn baby boy, Ethen, who died when his mother, Jenna Nielson, was murdered in 2007.

The passage of the law was also influenced by the murder of Cherika Adams and her unborn child by Carolina Panther’s player Rae Carruth. Carruth murdered Adams, his pregnant girlfriend, because he did not want to pay child support. Carruth hired a team of people to murder Adams as the two were supposed to leave for dinner and a movie. Under the law at that time, Carruth could only be charged with the murder of Adams, even though her fetus was viable at the time of the attack.

Assistant District Attorney Steve Ward said, “In the past the law had been that the fetus had to be born alive and then die before you could charge a homicide. Now you can charge a homicide from the mere fact that the fetus dies as an intentional act by the suspect in the case.” Proponents of the law believe that the measure is important because many potential victims are targeted specifically because they are with child. Rep. Dale Folwell, R-Forsyth, the chief sponsor of the law said, “This law is about murderers and thugs and how we’re going to treat them…If this prevents one woman from being murdered, it will be successful.”

North Carolina is now among thirty-six states with similar laws. The law, however, is not without its opponents. Critics say that the law has nothing to do with protecting the women, as its proponents claim, but its primary goal is to curb a woman’s right to an abortion. Opponents say that the law does little to prevent or restrict violence against women. Its real purpose is to establish that a fetus is a person for purposes of North Carolina penal law. Carey Pope, executive director of NARAL Pro-Choice North Carolina, said that “Once the law establishes a fetus as a full, living person throughout all nine months, as the law does, it becomes easier down the road to strip away abortion rights.”

Armed Gunmen Open Fire in North Carolina Mall

Published on: November 28, 2011 | On behalf of Arnold & Smith, PLLC

According to a recent news report by WRAL, police in Fayetteville are searching for two armed suspects who opened fire in a crowded shopping mall. Shoppers had already begun to arrive in anticipation of Black Friday’s massive retail discounts when the shooting began. Police say that one of the suspects fired the first shots around 2 a.m. near the entrance to the food court at Cross Creek Mall in Fayetteville, North Carolina. One individual ran inside the mall, followed by another armed man when the second suspect fired a second round of shots outside of the Macy’s Department Store.

Police say that no one with injuries checked into the local hospital, Cape Fear Valley Medical Center. Although no one was injured by the gunfire, the incident caused panic and chaos throughout the crowded shopping mall. Shoppers were frightened and many of them left the Cross Creek Mall to continue their Black Friday shopping in a less gunfire prone location.

Some shoppers reported people being trampled in the melee as the terrified shoppers tried to find a place of safety. One shopper was reported as saying, “People were running and they were yelling. . . Our first instinct was to hide, to get away from the situation.” That, however, did not seem to stop the holiday shopping spirit and Black Friday buying quickly resumed after the Cumberland County Sheriff’s Department restored order at the mall.

The shooting at the Cross Creek Mall was not the only episode of violence that erupted this weekend among eager Black Friday shoppers. There were several reported incidents across the country where overzealous shoppers resorted to unsavory tactics to take advantage of Black Friday’s retail discounts. In Los Angeles, California a woman allegedly pepper-sprayed her fellow shoppers as she was attempting to securer X-Box gaming consoles on sale at a local Wal-Mart. There was also an incident in Kingston, North Carolina where a security guard was forced to use his pepper spray to bring order to an unruly crowd.

If and when the suspects in the Cross Creek Mall incident are captured, they may face several possible state and federal charges. If either suspect has been previously convicted of a felony, they come under the jurisdiction of the Felony Firearms Act in North Carolina which prohibits felony offenders from buying, owning, or possessing firearms. There are also federal firearms statutes that apply to felony offenders who are found in possession of handguns and other firearms. Both of these laws may apply simultaneously (because the federal and state governments are independent sovereigns), increasing the likelihood that these gunmen will face several years behind bars.

Seven Arrested After North Carolina Child Found Locked in Room

Published on: November 25, 2011 | On behalf of Arnold & Smith, PLLC

child abuse article.bmp According to a recent report by WFMY News, seven people were arrested after a child was found locked in a room at a home in Thomasville, North Carolina. A woman called the Thomasville Police and told them that she had been kidnapped and assaulted by her boyfriend. Officers responded and conducted an investigation and issued several warrants, including one for the woman’s boyfriend, Joshua Reed. Upon a search of the location, police located several other suspects, marijuana and prescription drugs. They also found several children inside the home including a small child locked inside a room. The home was in disarray so investigators called in the Davidson County Department of Social Services and removed the children. The police have charged five people with a number of charges including kidnapping, assault, possession of marijuana and child neglect.

North Carolina defines a neglected child as a one who is denied adequate “care, supervision, or discipline” by a parent or guardian. The North Carolina Division of Social Services provides a list of signs to look for in a child to determine if they are suffering from neglect. If the child begs for food, lacks medical or dental care, does not have appropriate clothing for the weather or abuses alcohol or other drugs; then it is likely that the child has been or is being neglected. There are also signs to look for in parents. If the parent seems apathetic or depressed, behaves in a bizarre manner or abuses alcohol, then it is possible that the parent is abusing or neglecting his or her children.

North Carolina Gang Leader Indicted

Published on: November 18, 2011 | On behalf of Arnold & Smith, PLLC

Gang Sign.bmp According to a recent report by WXII12.com, the leader of the Almighty Latin Kings and Queens Nation, Jorge Cornell, has been indicted on federal racketeering charges. Cornell has been in the public eye since he decided to run for Greensboro City Council twice and lost on both attempts. The indictment was handed down at the end of November, but for the safety of witnesses and victims as well as preservation of the prosecution’s case, the indictment was placed under seal.

On Tuesday, December 6, 2011, a federal judge unsealed the indictment and a warrant was issued for Cornell’s arrest. Cornell and several others have been charged with conspiracy to commit several murders, as well as assaults, kidnappings, robberies, and arsons. Specifically, the indictment charges that Cornell ordered other Latin Kings and Queens Nation members to use machetes on members of the group who defied Cornell’s orders.

The indictment also charges that Cornell “orchestrated a public relations campaign” that masked the criminal tendencies of the Almighty Latin Kings and Queens Nation. Specifically, Cornell is said to have described the gang as a public service organization rather than calling it what is really is, a violent criminal gang. If convicted, Cornell and his compatriots all face possible life sentences in federal prison.

Cornell is charged with racketeering under the federal Racketeer Influenced and Corrupt Organization (RICO) Act, under Title 18 of the United States Code. 18 U.S.C. § 1961(1) defines “racketeering activity” as “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene material, or dealing in a controlled substance or listed chemical…”

Racketeering is essentially a pattern of illegal activity performed by an organization, which is designed to perpetuate that criminal organization. The federal government has used RICO to target violent street gangs as a collective rather than having to settle for going after individual members. Given the gangs’ culture of silence, bringing down the entire organization by targeting individuals was difficult. Members of many gangs are reluctant to reveal information about the inner workings of their organization for fear of retaliation.

Penn State Sex Abuse Scandal Rocks the College Sports World

Published on: November 11, 2011 | On behalf of Arnold & Smith, PLLC

Penn State.jpg What has happened over the last week at Penn State University has tarnished the lengthy career of a football coaching legend and the reputation of a nationally recognized institution. Wednesday evening Joe Paterno, 84 year-old football coach of Penn State University, was asked to step down immediately, ending his 46-year tenure as head coach.

In order to understand how we have gotten to this point, it is critical to understand the history and timeline of events that have taken place over the last few decades. In 1969, Jerry Sandusky began his coaching career as a defensive line coach with Penn State University under legendary coach Joe Paterno. In 1977, Jerry started his now infamous organization called The Second Mile which was intended to help children with absent or dysfunctional families. Over the course of a 15 year-period, beginning in 1994, Sandusky had numerous alleged encounters with young boys. Some of these incidents were witnessed by other members of the coaching staff and occurred at the Penn State athletic facilities. In total, Sandusky faces over 40 criminal charges with 25 of those being felony counts of deviate sexual intercourse, aggravated indecent assault, unlawful contact with a minor, endangering welfare of a child and indecent assault against at least eight victims over more than a decade.

As the details of the alleged acts have been flooding the media in the last couple of days, the idea of an adult violating these innocent children is disturbing to say the least. I am sure everyone would agree that Sandusky should be punished for his crimes. However, what makes this story even more interesting is how the lack of action on the part of others is bringing them under fire, most noteworthy Coach Paterno.

As the story has further unraveled, it appears that Paterno and other school officials had the opportunity to alert authorities, but instead just alerted the Penn State athletic director ,Tim Curley. As it stands, Curley and another university official are facing charges of perjury and failing to report Sandusky to authorities. On two different occasions, once in 1998 and again in 2002, Sandusky was accused of engaging in this violent criminal behavior and the school effectively did little to nothing to stop it. Although Paterno does not appear to be facing criminal charges like Curley, it is still safe to say that his career has been tainted and ended sooner than he had intended. No doubt that the reputation of the esteemed Penn State University has been forever changed.

Michael Jackson’s Doctor Found Guilty of Involuntary Manslaughter

Published on: November 4, 2011 | On behalf of Arnold & Smith, PLLC

Michael Jackson.bmp After a two-year legal battle and nine hours of jury deliberation, Doctor Conrad Murray was found guilty of involuntary manslaughter in the death of pop star, Michael Jackson, at the downtown Los Angeles County Courthouse. Murray served as Jackson’s personal physician as he vigorously prepared for his comeback concert. During this time, Jackson was known to have had trouble sleeping and according to his testimony to remedy this Murray was administering the surgical anesthetic propofol every night for at least two months. The Los Angeles County coroner confirmed that Jackson’s death was caused by “acute propofol intoxication” in combination with two other sedatives.

The trial lasted for 23 days and there were 49 witnesses who included Murray’s girlfriends and patients, Jackson’s former employees, investigators and medical experts for each side. The jurors were left to determine if Jackson had given the deadly dose of propofol to himself or if it was administered by Dr. Murray in an intravenous drip. Prosecutors said that Murray was willing to give the dangerous drug, propofol, in return for $150,000 monthly paycheck.

The spokesman on behalf of the Jackson estate and family called this a “victory” and said “justice was served.” The judge made it clear that this crime was being taken very seriously. When Murray’s lawyers asked to allow Murray to be free while awaiting sentencing hearing, Judge Pastor said “public safety demands that he be remanded.” He went on further to say, “This is a crime where the end result was the death of a human being….this demonstrates rather dramatically that public should be protected.”

Even with all of the coverage, you may still be wondering what involuntary manslaughter means, and what someone does to be guilty of such a crime. In North Carolina, involuntary manslaughter could occur in two different ways. First, it could involve committing an act that results in someone’s death, but the person responsible did not act with the intent to kill. In essence, someone is negligent and that negligence results in someone’s death. This is the theory that Dr. Murray was convicted under. Second, it can result from what is called the “misdemeanor manslaughter” rule. This rule applies when a defendant commits a misdemeanor that results in another person’s death. For example, if the defendant sets fire to brush or grasslands, which is a misdemeanor, and that fire results in someone’s death, that death would be considered involuntary manslaughter because it was caused by the commission of a misdemeanor.

In North Carolina, involuntary manslaughter is a class F felony which could result in up to 49 months, or just over 4 years in prison. This is almost exactly what Dr. Murray will face at his sentencing hearing on November 29, 2011, where he faces up to 4 years in prison.

Is a Continuous Alcohol Monitoring Anklet the Solution for Drunk Driving?

Published on: October 7, 2011 | On behalf of Arnold & Smith, PLLC

interlock ignition.jpg Since the passage of North Carolina’s Laura’s Law in June by Governor Beverly Perdue, the courts have been tougher on drunk driving especially Hard Core Drunk Drivers (HCDD). The law is named for a North Carolina teenager who was killed by a drunk driver who had three prior DWI (Driving While Impaired) on his record. In the past, excessive offenders would be given an interlock device on their car which would force them to blow into a device before operating their vehicle. Research has found that with these interlock ignition devices, many of the offenders get a “blow fail” which means that at the time they were too drunk to operate the vehicle but still attempted to do it. The interlock ignition device is used for HCDD which are those offenders who are found to blow over a .15 BAC (.08 is the legal limit in NC).

North Carolina plans to follow the states of Tennessee, Delaware, Arizona, Colorado, Nebraska , North Dakota and South Dakota by introducing tougher sentencing for the HCDD with hopes of impacting their overall sobriety and broader alcohol abuse issue. Statistics show according to the Century Council, that in 2009, 70% of alcohol related traffic fatalities were caused by drivers who had a BAC level of .15 or higher and this statistic has remained the same for the past decade.

One device that is being proposed to help better address this HCDD population is an alcohol monitoring anklet. This device is called a SCRAMx and is manufactured by a company called Alcohol Monitoring Systems, Inc. The anklet would use a non-invasive transdermal analysis to monitor alcohol use and would report this back to the appropriate authorities. The immediate goal would be to lessen the number of drunk driving offenses and consequent accidents and fatalities by the HCDDs; however, the long term goal would be to assist these individuals with their broader alcohol abuse issues and help them on the road back to sobriety.

Man Convicted of Murdering Two Charlotte Officers Last Year Appeals

Published on: September 28, 2011 | On behalf of Arnold & Smith, PLLC

court of appeal.jpg Citing sixteen separate reasons for his case to be overturned, attorneys for Demeatrius Montgomery have filed an appeal almost one year after he was convicted for killing two CMPD officers at the Timber Ridge Apartments in 2007. In an interview with Charlotte News Channel 14 on September 27, 2011, Charlotte criminal defense attorney Brad Smith cites the fact that Mr. Montgomery barely spoke to his attorneys during the three and a half years his case was pending as evidence that he may not have consented to those attorneys representation of him in his trial. According to Mr. Smith this could be grounds for appeal.

At 11:30 p.m. on March 31, 2007, Charlotte Police Officers Sean Clark and Jeff Shelton responded to a disturbance at the Timber Ridge Apartments. After resolving the disturbance, the officers were headed back to their cars when they struck up a conversation with a man, who had nothing to do with the prior disturbance. Once the officers began walking away, that man, later identified as Mr. Montgomery, opened fire on the officers shooting both in the back. Both officers died of their injuries the next day.

The trial itself was not without issues. First was the fact that even though prosecutors initially wanted to seek the death penalty, once it was shown that an investigator on the case destroyed his own notes and plagiarized those of other officers, the judge ruled that he would not allow the death penalty to be a possible sentence if Mr. Montgomery were convicted. Next, none of the prosecution’s seventy witnesses ever saw Mr. Montgomery pull the trigger, and there was no physical evidence linking him to the murder weapon. The prosecution’s case primarily rested on testimony that Mr. Montgomery was in the area and had a history of violence towards police. Last was Mr. Montgomery’s failure to participate in both building a defense with his own attorneys as well as participating in the trial.

Now, based on those issues, Mr. Montgomery’s attorneys have appealed stating that testimony that was admitted at trial was either not credible or inappropriate as well as alleging that Mr. Montgomery was incompetent to stand trial. This appeal will likely take months or years to resolve, and, according to Charlotte criminal defense attorney Brad Smith, could even result in oral arguments before the North Carolina Court of Appeals.

Racial Justice Act May Delay Mecklenburg County Death Penalty Cases

Published on: September 23, 2011 | On behalf of Arnold & Smith, PLLC

death penalty pic.bmp In a recent interview with WSOC channel 9 news interview, Charlotte criminal defense attorney, J. Bradley “Brad” Smith, was asked to comment on the Racial Justice Act and how it is impacting the death penalty cases that are set to be heard next year in Mecklenburg County. According to the Mecklenburg County DA, the courts will try three death penalty cases in 2012.

Signed into law in 2009, The Racial Justice Act allows death row inmates to challenge their conviction on the basis of race. This may very well delay the process and court proceeding for Mecklenburg County cases. Of the 158 inmates currently on death row, 152 have filed racial justice claims. Prosecutors believe this is an overuse of the law; however, from the defendant’s perspective, attorney Brad Smith says, “when you’re sitting on death row you’re pretty much gonna use anything and everything at your disposal in which to challenge your conviction and not get the death penalty.”

The death penalty matter has once again grabbed headlines with the recent events in Georgia with Troy Davis. On Wednesday, September 21, 2011, at 11:08 p.m., Troy Davis was executed for the murder of Savannah police officer Mark MacPhail. In the weeks prior to Mr. Davis’ execution, he and his supporters sparked yet another national debate over the death penalty, the possibility of an innocent man being executed for a crime he did not commit, and the issue of race in death penalty sentencing.

On August 18, 1989, Officer MacPhail was working off-duty as a security guard at a Burger King. At around 1:00 a.m. there was a disturbance in the parking lot when a group of men, including Mr. Davis, was accosting a homeless man over some beer. While responding to the disturbance, Officer MacPhail was shot twice, once in the heart and once in the head. On August 23, 1989, Mr. Davis turned himself in knowing he was a wanted man in the murder of Officer MacPhail. Just over two years later, Mr. Davis was convicted of murder and sentenced to death.

The case against Mr. Davis was one lacking in physical evidence. No murder weapon was ever found, and though a ballistics expert testified the same gun may have shot Officer MacPhail and wounded another man that same night, although he did have doubts about this. Witnesses also testified either that they observed Mr. Davis shoot Officer MacPhail, or that Mr. Davis confessed that he shot Officer MacPhail.

So You Blew on the Intoxilyzer? What does registering a .08 or above on the “Breathalyzer” mean for your legal defense. – Part 2

Published on: September 9, 2011 | On behalf of Arnold & Smith, PLLC

road with police tape.bmp Defending your Driving While Impaired charge with ingenuity means attacking the Intoxilyzer. The most effective way to attack the magic box is to hire your own attorney. The manufactures of the Intoxilyzer have a vested interest in selling the myth that they have created an instrument that never breaks down, never freezes up, and always produces a perfectly accurate reading. The reality is the intoxilyzer just like any computer has its problems.

The state will present the reading for the intoxilyzer by having the analyst who conducted the test testify. Typically an analyst is only qualified to testify about how the instrument is used to conduct the test. In other words he knows how to turn the instrument on, he knows how to enter the defendant’s name into the instrument using the keyboard, and he knows which button to push before asking to defendant to blow into the instrument. Despite their limited knowledge concerning the science behind the instrument, many analysts will testify about how the instrument works. This typically leads to disaster as the astute defense attorney will point out all the problems with the analyst’s testimony and entirely destroy the credibility of the state’s case with testimony from their own expert.

In North Carolina the Department of Health and Human Services has created regulations that lay out the foundation requirements for a breath test.These regulations state that every analyst must observe a defendant for 15 minutes before requesting that they submit to a test of their breath. The purpose of the observation period is to make sure the defendant does not eat or drink anything, vomit or burp in the fifteen minutes before a the test is requested. The observation period is typically a step in the process that many analysts virtually ignore. It is essential that an attorney defending a Driving While Impaired case request the video feed from the intoxilyzer room so that they will be able to see if the Officer requesting the test physically observed the defendant for fifteen minutes before the breath test.