Criminal Charge

DOJ wants Alamance County Sheriff to respect the Constitutional rights of Latino drivers

Published on: August 14, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

Driving-while-Latino makes you ten times more likely to be pulled over in Alamance County for committing a traffic infraction. That is according to a 2012 statistical study commissioned by the United States Department of Justice. Sheriff Terry Johnson told officers manning vehicle checkpoints to “go out there and get me some of those taco eaters,” according to a civil rights lawsuit brought against Johnson in 2012. A trial in that case began on Tuesday in United States Federal Court for the Middle District of North Carolina.

In its lawsuit, the United States asked the court to order Johnson and sheriff’s deputies to stop discriminating against Latinos and to adopt systems and policies that eliminate discrimination. Johnson denied the allegations in his answer to the lawsuit and moved for dismissal.

In order to prove its case, the United States must show that law-enforcement officers engaged in “a pattern or practice” of activities that denied Latinos in Alamance County their Constitutional rights. One of the most difficult elements of proving such a claim is demonstrating that the accused had “discriminatory intent.”

The United States has used Johnson’s past statements, emails sent to and from the Alamance County Sheriff’s Office, and statistics on law-enforcement activities in an effort to show Johnson’s alleged bias. Johnson has responded that statements of opinion or political belief have been misconstrued by the government as evidencing bias on the part of law-enforcement officers against Latinos. Regarding law-enforcement efforts, Johnson alleged in his trial brief that, according to the Drug Enforcement Agency and Immigrations and Customs Enforcement, ninety-percent of drug traffickers in Alamance County are Mexican, while one-hundred percent of drug and money couriers are Mexican.

North Carolina legislature moves to regulate drones

Published on: August 12, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “What is the difference between a misdemeanor and a felony?”

The law is catching up with drones. If you plan to operate a drone in the state of North Carolina, you need to know about some new laws the North Carolina General Assembly passed this summer. The provisions regarding drones were included in “The Current Operations and Capital Improvements Appropriations Act of 2014,” also known as Senate Bill 744.

Most of the new laws regarding drones go into effect on October 1 of this year. The laws add to North Carolina’s criminal code to establish, in effect, a class of “drone crimes.” Drones are called “unmanned aircraft” in the law, and are defined as “aircraft operated without the possibility of human intervention from within or on the aircraft.” The act excludes model aircraft from the act.

It will become illegal on October 1 to use drones to conduct surveillance of a person, an occupied dwelling or private real property without consent. Private real property means land that is owned by private individuals or companies. “Occupied dwelling” refers to any houses or buildings that have people in them. The act prohibits photographing people using a drone without their consent if the purpose for taking the photograph is to publish it or publically disseminate it.

Law enforcement officers may use drones in ways the act prohibits. The act carves out exceptions for officers who are using drones to counter a “high risk of terrorist attack.” Officers can also conduct drone surveillance of areas within their plain view from places they have a legal right to be. They can use drones in connection with serving a search warrants. They can use drones when they have “reasonable suspicion of specified imminent circumstances,” and they can use them to photograph gatherings to which the general public is invited.

Wiener’s ban on nudity drives opponent to nude show on opposite coast

Published on: August 7, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “What is the difference between a misdemeanor and a felony?”

Scott Wiener wants public nudity banned in San Francisco.

Mr. Wiener’s opponent in a race for a spot on the San Francisco Board of Supervisors is George Davis. Mr. Davis believes that nudity is free speech protected by the First Amendment to the United States Constitution. Yesterday he went to Times Square and stripped naked, then gave interviews in the nude while “onlookers gawked, laughed and took photos” and one man “loudly read Bible passages.”

Times Square is in Manhattan, a borough of New York City, which is 2,908 miles away from San Francisco. Mr. Davis could just as easily have come to Charlotte to strip, but if he had, he would have been arrested and he probably would not have garnered as much publicity.

Stripping naked in North Carolina would have subjected Mr. Davis to criminal penalties under state law. It is a misdemeanor for anyone to willfully expose his or her “private parts” in a public place “and in the presence of any other person or persons.” It is a felony if the exposure is made to arouse or gratify sexual desire.

State law does not define what “private parts” are, but North Carolina courts have provided an answer. In 1995, Mark Edward Fly pulled his shorts down to his ankles and bent over, exposing the “crack of his buttocks” and his “fanny” to Barbara Glover on the landing outside her condominium. He was convicted of indecent exposure, but the state Court of Appeals reversed his conviction, ruling that “private parts” means “genital organs.” Genital organs, the court observed, are those organs related to “biological reproduction.”

Mecklenburg County tries to use law banning “smoking” to ban more than smoking

Published on: August 5, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

Smoking outside is not far enough to health officials in Mecklenburg County. They want smokers to quit their habit altogether on any government-owned grounds. They also want to ban chewing tobacco and electronic cigarettes because, they say, they want to send a message to kids that smoking is not cool.

The legislature held public hearings five years ago as it debated a smoking ban in bars and restaurants in the state. The Tar Heel State, through its North Carolina Department of Health and Human Services, considers smoking a health hazard. It also reports that secondhand smoke increases nonsmokers’ risks of developing lung cancer and heart disease, and can cause asthma in children or trigger asthma or heart attacks.

The Smoke-Free Restaurants and Bars Law became effective on January 2, 2010. It requires enclosed areas of nearly all restaurants and bars in the state to be smoke free. Smoking is also banned in enclosed areas of hotels, motels and inns if food and drinks are served. Like many laws, The Smoke-Free Restaurants and Bars Law does more than its title portends. It gives local governments the authority to place greater restrictions or prohibitions on smoking than are found in state law.

Local governments can restrict or prohibit smoking in “unenclosed areas owned, leased, or occupied by the local government,” in any passenger-carrying vehicles used by government, and in enclosed areas used by the public. Aside from a few narrow exceptions, the only places local governments cannot restrict or prohibit smoking are in people’s private cars and homes.

The effects The Smoke-Free Restaurants and Bars Law are being felt, according to Cynthia Hallett, the Executive Director of Americans for Nonsmokers’ Rights. She said visits to North Carolina emergency rooms for heart attacks have dropped 21-percent since the law took effect. Thousands of people have avoided heart attacks because of the law, she said.

Charlotte’s Growing Heroin Problem

Published on: July 29, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte has a major heroin problem. The city is ranked fifth in the country when it comes to the sale and distribution of black tar heroin, much of which occurs in Charlotte’s more affluent communities. This problem has been described as Charlotte’s “invisible drug epidemic” and there are some disconcerting numbers to prove it.

In 2013, the Charlotte-Mecklenburg Police Department – South Division, released reports showing that in 2013 south Charlotte heroin related overdoses and arrests increased by over 30 percent. What is also alarming is the average age of heroin users is decreasing as well. In a survey of heroin users, 33.3 percent first used heroin when they were 16-18 years old. Of those users surveyed, 53.2 percent said they could usually obtain heroin within 30 minutes. This easy accessibility can be attributed to the largely untouched market in the south charlotte area, which has generally had low gang activity making it a target for drug dealers to expand their market and find new customers.

Heroin is an opiate that shares properties with commonly abused prescription painkillers such as OxyContin and Vicodin. These painkillers are being abused more and more over the last decade, causing addictions that required constant use just to feel “normal”. As more state governments began regulating these drugs the illegal market’s supply dwindled causing a substantial increase in prices. As prices rose, those abusing these painkillers have begun to turn to heroin as a much cheaper alternative at around nine dollars per bag versus 60-100 dollars per pill. It has also become a common practice for heroin dealers to offer deals for buying in bulk.

The sale of heroin in Charlotte has become increasingly easy. Phone numbers float around where a user can call and make an order, the dispatcher instructs the customer where to go (usually a safe place like a mall parking lot or a public park) and a runner meets the customer with the heroin; the exchange can take place without ever leaving the car.

Arizona man’s “botched” execution fans flames of anti-death penalty sentiment

Published on: July 24, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Lawyer Brad Smith answers the question “Should I ever plead guilty to a charge?”

An Arizona man executed Wednesday was denied access to information about drugs used during his execution. The man’s lawyers fought unsuccessfully to obtain information about the drugs and whether those conducting the execution had any experience using them.

The man—Joseph Rudolph Wood, III—was sedated at 1:57 p.m. after a stay of his execution entered by the 9^th Circuit Court of Appeals was lifted by the U.S. Supreme Court. The stay had been entered to allow Wood’s lawyers additional time to explore the efficacy of drugs to be used in the execution. States like Arizona have shrouded the identity of drugs and their makers in secrecy after the United Kingdom and European Union imposed restrictions in 2010 and 2011 on the export of anesthetics used in executions.

The ban on exports led to a shortfall of pentobarbital and sodium thiopental—two drugs traditionally used in lethal injections—leading states conducting executions to seek out substitutes. One state—Oklahoma—used a new drug combination during the April 29 execution of 38-year-old Clayton Lockett. Lockett was declared unconscious ten minutes into his execution, but three minutes later he began breathing heavily, writhing, clenching his teeth and straining to lift his head off a pillow. That prompted prison officials to lower the blinds to prevent those in the viewing gallery from seeing what was happening. Lockett eventually died of a heart attack.

In the Arizona case, after being sedated, Wood continued breathing and began gasping and snorting, according to his lawyers. An emergency hearing was convened, and the Arizona State Supreme Court was actually hearing from Wood’s lawyers when Wood was declared dead—some two hours after the execution began. A spokesperson for the Arizona attorney general’s office who also witnessed the execution said Wood was only snoring. “It was quite peaceful,” the spokesperson said. “He just laid there.”

Victim’s statement of forgiveness causes court to reconsider sentence in hit-and-run case

Published on: July 22, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I ever plead guilty to a charge?”

When Bill Walker took the stand to address the young woman who killed his son, Chris, in a hit-and-run accident, those present in a Cincinnati courtroom were witness to one of the most extraordinary and unexpected acts of forgiveness chronicled in criminal courts of justice in recent years.

With his son’s killer standing just feet away, Mr. Walker—joined by Chris’s mother—told Lauren Balint that she was “totally forgiven. I hope you get married and have a good, long life.” Mr. Walker added that he wished his son had never stumbled onto Interstate 71 in front of Ms. Balint’s vehicle, because the accident had affected her life as well. Mr. Walker said forgiveness was the best gift he could give Ms. Balint in the circumstances.

The courts of criminal justice have long been known as adversarial settings in which prosecutors fight on behalf of state and federal governments to prove alleged criminals guilty, while accused criminals fight to prove their innocence. If guilt is established, the state or federal government seeks to punish a convict to the fullest extent possible under the law, while a convict seeks the most lenient sentence available.

These are broad generalizations, but in general our adversarial system of justice is one that provides little room for cooperation, especially in the arena of criminal law. A criminal case sets out the nature of the action in its caption: State of North Carolina v. Doe. The “v” stands for “versus,” or against. In the typical criminal case, the State is seeking to hold “Doe” accountable for his actions and to punish him.

In recent years, States including North Carolina have allowed victims of crimes to take the stand to describe the impact that criminal offenses have had on their lives. These “impact statements” may be considered by a judge or jury during the sentencing phase of a trial, after a defendant has been found guilty. Victims can describe any physical, psychological or emotional injury suffered as a result of a criminal offense, and can also explain how a criminal act has resulted in economic or property loss to the victim.

Pineville only the latest in string of cities and counties to install police-monitored cameras

Published on: July 17, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Do I need to hire an attorney if I have been falsely accused?”

Police in Pineville are telling would-be criminals to think twice before executing any misdeeds in the tiny suburb south of Charlotte. Or if someone does set out to commit a crime in Pineville, one should choose a corner of a parking lot where one is not going to see too many people.

The new round-the-clock wireless camera network does not cover the corners of a parking lots where one won’t see too many people, says Pineville Police Lieutenant S.C. Copley. Instead, the initial half-dozen cameras installed by the town are trained on Jack Hughes Park, where the action is.

Copley said the cameras are monitored. “We can keep an eye on any suspicious activity with people, maybe looking into cars,” Copley told WCNC. He thinks it’s a good thing that the cameras haven’t led to many arrests in their first two months of operation. Would-be criminals see the cameras and check themselves before they wreck themselves, he implied. “This isn’t a covert operation,” Copley said.

Cameras are “pretty much everywhere” already, Copley added, so having a live feed of the goings-on in Pineville available at the click of a mouse at the police station is “beneficial for safety.” Copley said officers can tap into the cameras at any moment to see exactly what is going on in a given location.

Pineville is home to Carolina Place Mall and some 8-million square feet of retail space, but the cameras won’t reach any of those spaces. It is likely that most or all of the retail facilities have cameras of their own, however, and Pineville Police Chief Robert Merchant is encouraging other businesses to follow suit. If they do, they can join the wireless police network. Merchant said police wouldn’t monitor feeds from private businesses in real time—they could if they wanted to, presumably—but officers “will have immediate access to playback… in case of an incident.”

Running from a charge—and your past—only makes it worse

Published on: July 15, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Do I need to hire an attorney if I have been falsely accused?”

Last week, Amy Arrington illustrated how not to handle an impending court appearance. Arrington, of Gaston County, faked her own disappearance during a weekend trip to Myrtle Beach in order to avoid court in Charlotte on fraud charges. She turned herself in after additional charges were levied against her and husband Paul Arrington over the staged disappearance.

Now police have identified 48-year-old Jeffrey Wayne Greene as the man who illustrated Sunday how not to handle the problem of outstanding warrants. Police received a tip early Sunday that Greene was staying at the Days Inn in Huntersville. Greene was a wanted man in Mecklenburg and Lincoln Counties in North Carolina and York County, South Carolina. He faced a slew of charges ranging from resisting an officer and fleeing arrest to obtaining property by false pretense.

Before police officers could arrest him, Greene fled, leading officers on northbound Interstate 77 from Exit 28 to Exit 33. Greene then exited the interstate and continued north on Highway 21 until he struck a patrol car while making a U-turn.

Greene then fled south, again on Interstate 77, before crossing the median at mile marker 24 and heading northbound again. Greene then exited the interstate and fled south on Highway 21 before crossing the centerline and crashing into two oncoming vehicles. Six people, including Greene, were injured in the crash. All are expected to survive. Police said Greene will be facing additional charges when he is released from the hospital.

The Greene and Arrington cases appear to illustrate a simple truth: you can run from the law, but you won’t get away.

Woman’s apparent disappearing act to avoid court anything but new

Published on: July 10, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “If I have an outstanding warrant, what should I do?”

A Gaston County woman did not drown in the ocean near North Myrtle Beach on July 5. Police are sure of that, but they do not know where Amy Lynette Arrington is. Her husband, Paul Arrington, reported her missing, and initial news reports focused on Mrs. Arrington’s last-known whereabouts: she was last seen on the beach near 24^th Avenue North wearing a red bathing suit with a floral design and brown trim. Police used jet skis and boats to locate her.

Now police say Mr. Arrington’s report was false. They have charged him with filing a false police report and said they have reserved the right to seek repayment for costs associated with searching for Mrs. Arrington.

Questions about Mr. Arrington’s missing person story were raised after it was revealed that Mrs. Arrington was supposed to appear in court in Charlotte for trial the following Monday. She was charged with identity theft in October 2013 after she allegedly used another woman’s account to buy thousands of dollars of merchandise on Amazon.com and pay cable and bank bills.

Mrs. Arrington reportedly has a long criminal history, with convictions in Wake, Union and Mecklenburg Counties. If she faked her own death or disappearance to avoid her day of legal reckoning, she is not alone. In fact, faking one’s death or disappearance to avoid court is quite common.
In 2011, a Tennessee woman accused of stealing $2,500 from a Macy’s department store had her case dropped after court officials received a death certificate showing the woman had died in Kentucky from a drug overdose.