Charlotte Criminal Lawyer Blog

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.

So You Blew on the Intoxilyzer? What does registering a .08 or above on the “Breathalyzer” mean for your legal defense. – Part 1

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

alcohol limit.bmp If you see blue lights come on behind your vehicle and it’s after midnight on about any day of the week, chances are the Officer stopping your vehicle is going to ask you if you have consumed any alcohol that evening. If he smells even the faintest odor of alcohol a Driving While Impaired investigation is almost certainly to follow. Hopefully after performing some routine field sobriety tests you will be allowed to get back in your vehicle and drive away, however, you may find yourself being placed in handcuffs and arrested.

The strongest piece of evidence for the state in the majority of Driving While Impaired cases is a sample of a person’s breath. Most individuals who are charged with Driving While Impaired submit to a sample of their breath on the intoxilzer because they think they think they will get bonus points in court by being “cooperative” and because when they are read their rights with respect to taking the test, they are informed that if they refuse to take the test their driver’s license will be revoked for one year. So if you blow a .08 or above on the breathalyzer, do you need to begin preparing for life after a DWI conviction or is there still hope?

The bottom line is the state’s case is certainly stronger with a reading than without one. However, a person who registers a .08 or above on the intoxilyzer is not automatically guilty of Driving While Impaired. In a recent decision the North Carolina Court of Appeals in State v. Narron held that a reading of .08 or above does not constitute a mandatory presumption of guilt for a person charged with Driving While Impaired. Rather, the reading on the Breathalyzer is simply reliable evidence to satisfy the State’s burden of proof as to this element of the offense of DWI.

Well you’re probably thinking if its reliable evidence isn’t that just as good as a presumption of guilt? The answer is of course “no”. Being a good criminal defense attorney means defending with ingenuity. If the Intoxilyzer is nothing more than “reliable” evidence, it can certainly be shown to be unreliable. The Intoxilyzer is not a magic box that always produces an accurate reading regarding a person’s breath alcohol content. If a prosecutor is allowed to submit a reading, without any rebuttal or any suggestion to the jury regarding the problems with breath testing or the problems with the Intoxilyzer, the fact finder will accept the reading as sufficient or “reliable” information as to a person’s alcohol concentration.

Catawba County “Knock and Talk” Leads to Discovery Marijuana, Moonshine, Money and Guns

Published on: August 29, 2011 | On behalf of Arnold & Smith, PLLC

In a Catawba County home, deputies found a liquor still, 100 jars of “white lightning” moonshine, 40 firearms, 195 grams of marijuana, prescription drugs, and more than $13,000 in cash. The resident, Mr. Timothy Scott Fox, has been charged with possession with intent to sell and deliver marijuana, maintaining a dwelling for a controlled substance, possession and sale of non-tax paid alcohol, possession and sale of alcohol without a permit, and manufacturing liquor without a permit. Mr. Fox is now out on $15,000 bond.

Interestingly, this bust and subsequent arrest arose out of what is called a “knock and talk.” When police suspect that criminal activity is present at a location, but they do not have enough evidence to obtain a search warrant, many times they will knock on the door of a location to interact with the persons at the residence and hopefully obtain enough evidence to meet the probable cause requirement for a search warrant.

In this case, police stated that they knocked on Fox’s door, and as they talked with him, they became suspicious of what was inside the home. No facts are given as to what their basis for the search warrant actually was in this case, however, many different things can serve as the basis of a warrant. For example, the smell of marijuana can give rise to probable cause. Another possible scenario is if police look into the interior of a home and they see ingredients that either are contraband, or are typically associated with contraband. Actually seeing the liquor still in this case would obviously be enough for probable cause.

‘West Memphis Three’ Set Free But Not Exonerated

Published on: August 22, 2011 | On behalf of Arnold & Smith, PLLC

West Memphis.jpg On August 19, 2011, Damien Echols, Jessie Misskeley, Jr. and Jason Baldwin changed their original 1993 not guilty pleas and a judge found that based on these new pleas, they have served their time, and they will be released but have a ten-year suspended sentence hanging over them once they are released. This legal maneuver, called an Alford Plea, allows these men to maintain their assertion that they are innocent but acknowledges that the state does have some evidence against them that could be the basis of a conviction.

In 1993, three 8-year old boys were murdered in West Memphis, Arkansas, a small town just across the Mississippi River from Memphis, Tennessee. Echols, Misskeley and Baldwin were charged and tried for the boys’ murder, but Prosecutors never could give anyone a reason why these then 13-year olds would commit such a horrendous crime. Their only idea was that these boys committed the murders as part of a Satanic ritual. The boys have always maintained their innocence, yet in 1993, Echols was sentenced to death, and Baldwin and Misskeley were sentenced to life.

The case of the West Memphis Three has been in the headlines for years. An HBO three part documentary, “Paradise Lost”, has been in the works almost since the boys were convicted with Part I being released in 1996 and Part II released in 2000. After Friday’s hearing, the ending of the third part will have to be revised before its release which was scheduled to be in January. Celebrities have also joined the cause with Metallica allowing the use of its songs in the documentary, and singer Pattis Smith, actor Johnny Depp and Pearl Jam’s Eddie Vetter all appearing at a benefit for the West Memphis Three in Little Rock, Arkansas last summer.

While the West Memphis Three are going home, they will still have the burden of a murder conviction and ten year suspended sentence hanging over them. Even though new DNA tests failed to show that the boys were even at the crime scene, the Judge would not overturn the conviction. Had the three not entered these Alford pleas, they likely would have stayed in prison pending a new trial. Once the judge refused to overturn the conviction, this was their best option to be sure to be released from prison.

These young men spent 18 years in prison for a crime they claim they did not commit, and there is no conclusive evidence to the contrary. One would hope that such a horror would be rare in this country where the state is held to a burden of showing guilt beyond a reasonable doubt. Yet too often there is a rush to judgment and an attitude that if a person is on trial, they must be guilty. The prime examples of this are the hundreds of exonerations that have resulted from DNA testing. In North Carolina alone, seven people have been exonerated after their wrongful conviction thanks to DNA testing.

Is Police Misconduct Becoming an Epidemic in the United States?

Published on: August 15, 2011 | On behalf of Arnold & Smith, PLLC

Police car.jpg On August 5, 2011, five current and former New Orleans police officers were convicted by a federal jury of various charges related to the shooting deaths of two unarmed men on the Danziger Bridge amidst the chaos surrounding Hurricane Katrina. The five men had been charged with twenty-five counts including the following: civil rights violations, deprivation of civil rights, obstruction of justice, and false prosecution. Four officers were found guilty of the shootings, while the fifth was found guilty of orchestrating the cover-up. The only counts the jury did not convict the officers of were the murder charges.

Nearly six years ago, Hurricane Katrina struck and decimated New Orleans. In the aftermath, chaos, lawlessness and looting abounded. While much of the city was still underwater, a radio call supposedly sounded reporting that police had been fired upon and that the shooters were headed toward the Danziger Bridge. This call was later shown to be false. A dozen officer responded to the call, and opened fire on the civilians.

As a result of the incident, seventeen year old James Brisette was shot in the back of the head, forty year old Ronald Madison was shot in the back. Also, a group of four unarmed survivors lay on the concrete bridge, crying and praying while officers fired their rifles at them at close range. In an attempt to cover up their misdeeds, the officers also attempted to frame two other innocent men who happened to be on the bridge that day by falsifying evidence, fabricating witnesses and planting a handgun.

These officers will be sentenced on these charges in the months to come, but they all face the possibility of life sentences for their convictions of a violation of civil rights which led to death.

While most people might chalk these officers’ behavior up to the post-Katrina chaos or the long standing corruption of the New Orleans police, unfortunately police misconduct is not that rare. A 2010 statistical report shows that there were almost 5,000 unique reports of police misconduct involving over 6,000 law enforcement officers and almost 7,000 victims. Additionally, this country spent $346,512,800 on misconduct-related civil judgments, settlements, court costs, and attorney fees, and this number does not include those settlements that were sealed.

Elisa Baker Wins Motion to Change Venue

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

criminal books.jpg On August 1, 2011, a Catawba county judge granted Elisa Baker’s Motion to Change Venue. Ms. Baker’s motion to change the venue of the trial was based on the extensive media coverage this case has attracted. Her attorney, Scott Reilly, felt that Ms. Baker could not receive a fair trial in Catawba County because of the coverage. District Attorney Jay Gaither did not oppose Ms. Baker’s motion. Although he felt that Ms. Baker would have been able to receive a fair trial in Catawba County, he “trust[s] the jury system… wherever we go.”

In a recent television interview with Charlotte News Channel 14, Charlotte criminal attorney J. Bradley Smith was asked to comment on this case where he said that he agreed with Attorney Scott Reilly’s recommendation to change the venue. Smith goes on to say, “what the next step will be is what county has a similar demographic makeup, population, etc. to Catawba County and what county the case will be moved to.” Smith thought that Rutherford County, NC might be in contention.

Ms. Baker has been held in the Catawba County Jail since she was arrested in October for writing a phony ransom note in order to make it seem that her step-daughter Zahra Baker had been kidnapped. She has since been charged with second degree murder. Ms. Baker told family members that Zahra died after an illness and that she and her husband panicked and disposed of the body instead of notifying officials. Family members have told authorities that Zahra’s father was afraid to take Zahra to the hospital because he was in this country illegally and social workers had previously investigated complaints against Ms. Baker.

Traditionally, the proper venue for a trial is the county where the crime or portion of a crime took place. However, under North Carolina law, a Defendant may make the motion to change venue. The court must then rule whether “there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.” Here, the court has found that there is little likelihood that Ms. Baker can receive a fair trial if it is held in Catawba County. The question is where the trial should be held.

Woman Files Lawsuit Against Stallings Police Department

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

On July 21, 2011, Dawn Whitlock filed suit against the Stallings police department and two of its officers for violating her civil rights when she was arrested almost three years ago for disorderly conduct and resisting an officer. In her complaint she alleges that Officers Tahitiana Munoz and Jeffrey Weatherman used excessive, unreasonable and unjustified force that resulted in physical injuries which required surgery.

On July 27, 2008, Officers Munoz and Weatherman responded to a 911 call from Robert Whitmore’s home. Mr. Whitmore told officers that James Polk, Whitlock’s boyfriend, had threatened to shoot him. Ms. Whitlock approached the officers and Mr. Whitmore as he was telling officers his story. Officer Munoz told Ms. Whitlock to get Mr. Polk. As Ms. Whitlock was returning to the house to do as the officer requested, Mr. Whitmore’s wife started an argument with Ms. Whitlock. Officer Weatherman began to yell at Ms. Whitlock, telling her to hurry up and threatening to arrest her. Ms. Whitlock then told Officer Weatherman to “go to hell,” at which point the Officers tackled Ms. Whitlock in her own yard.

Ms. Whitlock told the two officers she had recently had back surgery, and that Officer Weatherman was hurting her by lying on her back. As a result of the arrest, Ms. Whitlock’s back stimulation implant was “catastrophically damaged” which required her to undergo extensive surgery to remove the device and implant a new one.

Ms. Whitlock was tried in district court on the charges of disorderly conduct and resisting a public officer. At the trial, Ms. Whitlock was acquitted of the disorderly conduct charge but convicted of resisting a public officer.

Mecklenburg County Police Department to Cease Use of Tasers for Up to 45 Days

Published on: July 29, 2011 | On behalf of Arnold & Smith, PLLC

On July 21, 2011, Lareko Williams was tased by police after they say he was found beating and choking a woman at a Lynx light rail station in Charlotte. An hour later, Mr. Williams was pronounced dead. This death comes one day after a Charlotte federal jury awarded the family of Darryl Wayne Turner $10 million for his death after being tased by the CMPD. CMPD has now suspended their use of tasers for up to 45 days in order to make sure its tasers are working properly and to independently test the taser that caused Mr. Williams’ death.

Tasers are viewed as beneficial to those in law enforcement as a “non-lethal” option to subdue suspects. Many argue that tasers are much safer for suspects than other methods to subdue suspects such as a baton or other physical force. They also argue that tasers provide an alternative to lethal force when an officer has no backup. However, their use has become increasingly controversial in light of these serious injuries and deaths.

Tasers work in two different ways. One is called a “drive stun” where the taser is held directly to the subject without firing projectiles. The intent here is to cause pain, and thus this method is referred to as a pain compliance technique. Basically it is designed to cause pain in order to bring the subject into compliance, but on some subjects, such as those who are on certain drugs, the pain compliance technique does not work and other methods are needed to subdue an individual.

The other method of use is tasing an individual through shooting two electrode projectiles from the gun which are pointed, to ensure the projectiles can penetrate clothing and skin, and barbed, to ensure the electrodes cannot be removed. This method of use is not a pain compliance technique. Instead, the electrodes inject up to 50,000 volts into the body. All of this electricity interrupts the electric impulses that control the body and basically incapacitate a person. This use of the taser is effective even on those people on drugs that prevent them from feeling pain.