North Carolina Criminal Defense

Jury clears officer who shot and killed unarmed backseat passenger during traffic stop

Published on: January 7, 2015 | 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?”

The “Hands up, don’t shoot!” moniker is all the rage in the United States, with prominent professional athletes in the National Basketball Association and National Football League, as well as well-known celebrities, politicians, political pundits and media figures adopting the meme—some displaying the same on tee shirts proclaiming the phrase.

Long before the rage—before Michael Brown was shot to death by Officer Darren Wilson in Ferguson, Missouri, and before New Yorker Eric Garner died after being wrestled to the ground by a small team of New York City police officers—an unarmed backseat passenger in Billings, Montana was shot to death for failing to raise his hands during what began as a simple traffic stop.

Officer Grant Morrison said that on the night of April 14, 2014 he saw a car “turn quickly and decided to follow it.” After following it, Morrison said, he pulled the car over because of a “light violation.” Richard Ramirez was a passenger in the car.

Morrison testified at a hearing that after pulling the car over, he noticed that the back right passenger was pushing against the door. Morrison ordered all of the car’s occupants to raise their hands, but the 38-year-old Ramirez kept fumbling for something in his pocket.

“Wings on pigs” post protected by First Amendment, says legal expert

Published on: December 31, 2014 | On behalf of Arnold & Smith, PLLC

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

Americans are well informed of the facts—and the rhetoric—surrounding the high-profile police killings of Michael Brown in Ferguson, Missouri and Eric Garner in New York City this past summer. Most are just as familiar with killing of two New York City police officers last weekend by a man who said the point-blank shootings were retribution for Garner’s killing.

The man—Ismaaiyl Brinsley—allegedly posted on the website Instagram some three hours before fatally shooting officers Wenjian Liu and Rafael Ramos that he was “Putting Wings on Pigs Today.” The term “pig” is an insulting form of slang that refers to a law-enforcement officer. One gives someone wings—a reference to angel’s wings—by murdering someone. Brinsely’s post, translated, meant he planned to kill some police officers.

Now police in Chicopee, Massachusetts are seeking a criminal complaint against a 27-year-old man who also allegedly used the phrase “put wings on pigs” in a post on his Facebook page. That man—Charles DiRosa—is not accused of killing anyone, but police view the comment as a threat, according to Chicopee Police Department spokesman Michael Wilk.

The complaint, filed by members of the detective bureau in Chicopee District Court, is described as a “show-cause” complaint. A report by the local CBS affiliate described the charge against DiRosa as a “Threat To Commit A Crime.” At the show-cause hearing, the District Court will decide whether the complaint is valid. If so, DiRosa will be entitled to have a trial to answer and defend against the charge.

Jury convicts man who pled “stand your ground” defense

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

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

A 30-year-old Montana man has been convicted of deliberate homicide in the April 27, 2014 shooting death of a German foreign-exchange student.

The man, Markus Kaarma of Missoula, Montana, found 17-year-old Diren Dede in his garage after Dede triggered motion sensors. Witnesses testified at Kaarma’s trial that the man fired four shotgun blasts at Dede. Prosecutors argued at trial that Kaarma paused before taking the fourth shot, allegedly adjusting his aim before firing a blast into Dede’s head. Dede was unarmed at the time.

Kaarma’s neighbors testified that the man was disappointed by the response of local police to previous break-ins at his home. His girlfriend, Janelle Pflager, allegedly told neighbors that Kaarma set out to bait an intruder and catch one himself. Prosecutors argued that Kaarma wanted to do more than catch a burglar; they said he was intent on “luring an intruder into his garage” in order to harm the person. On the night of Dede’s shooting, Kaarma had left the garage door partially open with a purse visible inside.

Kaarma argued at trial that he feared for his life and could not tell whether the intruder was armed or not at the time he fired the shot. His lawyers also pointed out that Kaarma had been on edge after his garage was burglarized at least once in the weeks before the shooting.

Notes of caution sounded on across-the-board police body-camera use

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

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

The move is on—in the wake of riots and protests over police shooting and choking deaths of two unarmed men in Ferguson, Missouri and New York City—to equip police officers nationwide with body cameras. Privacy advocates, police chiefs and at least one police union, however, are expressing concerns about the plan.

The Washington Post reported Wednesday that the Obama Administration has proposed spending $75 million on 50,000 body cameras to be fitted upon law-enforcement officers across the United States.

The Charlotte-Mecklenburg Police Department is well ahead of the curve on body cameras. Earlier this year, CMPD Chief Rodney Monroe announced that all officers in Charlotte would be equipped with body cameras. (See related blog: “CMPD police body cameras may mean Ferguson never comes to Charlotte”).

This, Monroe said, would increase the trust the community has in police and, at the same time, would provide the State with crucial evidence regarding the circumstances of crimes and the conduct of responding officers.

The Post, citing NBC News, which in turn cited St. Louis hip-hop artist and activist Antoine White, said police body cameras might not be all they are cracked up to be. White, who met with President Barack Obama at the White House on Monday to discuss the recent events in Ferguson, told NBC News that “Giving a policeman a camera does not prevent him from shooting me in the head.”

Free-speech guardians worry man’s conviction may lead to criminalization of rap music

Published on: December 3, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

The Supreme Court entertained arguments this week in a case that could lead to the criminalization of some rap lyrics.

The case involves a 31-year old “aspiring rapper who likes attention” named Anthony Douglas Elonis. In early 2010, Elonis’s wife left with the couple’s two small children. Not long after, Elonis was fired from his job at an amusement park after coworkers made at least five sexual harassment complaints against him.

Elonis took to Facebook to voice his opinions about his estranged wife, his former employer and his old coworkers.

The statements began with Elonis posting an “I wish” caption beneath a Halloween photo showing him holding a knife to a coworker’s neck. That coworker had filed a sexual harassment complaint against Elonis shortly before Elonis lost his job.

Elonis then began posting statements directed at his estranged wife. In one message, he wrote: “If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.”

Researchers say the propensity to commit crimes may be down to a person’s genes

Published on: November 19, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

Researchers in Stockholm, Sweden have published findings that appear to show a link between two genetic mutations and a propensity to commit violent criminal acts.

The researchers studied the DNA of 800 Finnish criminals and compared it with 2,000 non-incarcerated Finns who had given DNA samples for a previous study. The researchers found that the two genetic mutations rendered individuals 13-times more likely than the general population to commit a violent crimes. The study did not draw a causal link between the mutations and violent crime.

Researchers hope the information is valuable to “offenders who want to break their cycle of repetitive violence.”

The study’s lead author, Dr. Jari Tiihonen, said researchers found that offenders with one of the two mutations experienced marked spikes in dopamine whenever they consumed drugs or alcohol, which could have fueled criminal activity.

Tiihonen suggested, for instance, that in addition to traditional forms of criminal punishment, offenders with certain genetic mutations could be administered drugs while incarcerated that “make it impossible… to use alcohol anymore… given the medication’s ability to make drinking unpleasant and distasteful.”

N.C. voters pass Constitutional amendment allowing defendants to waive jury trials

Published on: November 13, 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?”

Like other criminal defense attorneys, I would almost never recommend that a defendant waive one’s right to a jury trial.

Until last week, defendants in North Carolina could not be convicted of a felony but upon unanimous verdict of a jury of one’s peers. Now that right has been diluted, and criminal defendants have a new right: the right to waive their rights.

For the second time in two years, voters in the Tar Heel State have amended North Carolina’s State Constitution. Earlier this year, a pair of federal court judges struck down a 2012 state constitutional amendment banning same-sex marriage.

This time around, voters in the Old North State narrowly passed a state constitutional amendment that will enable defendants in criminal superior matters to waive jury trials.

Article I, Section 24 of the Constitution of North Carolina will now read:

Mayor whose voting were rights stripped after conviction in hot water for voting anyway

Published on: November 11, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

Former Charlotte mayor Patrick Cannon found himself back in federal court in Charlotte last Thursday, where he faced the same federal district court judge who sentenced him to 44 months in prison last month.

Judge Frank Whitney told Cannon he embarrassed the city by accepting bribes in the mayor’s office and then embarrassed the city again by voting in this year’s elections.

Cannon cast his votes on October 30 at Community House Middle School, records show. In the State of North Carolina, persons convicted of felonies are ineligible to vote.

The United States Attorney argued that Cannon was a sophisticated voter and should have known that he had been stripped of his voting rights. The government asked that Cannon’s bond be revoked and that he be placed in custody immediately.

Judge Whitney agreed that Cannon had violated the terms of his bond but declined to place Cannon in immediate federal custody. Instead, Cannon will be fitted with an electronic monitoring device and will be confined under house arrest until he reports to a minimum security federal prison in West Virginia at the end of the year.

Media outlets move to unseal records of cellphone, wireless-device surveillance

Published on: November 4, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

Two Mecklenburg County Superior Court judges have indicated that they may be willing to unseal court records detailing how law-enforcement officers have used secret surveillance of cellphones and other wireless devices in closed investigations.

Superior Court Judge Richard Boner told the Charlotte Observer that the legal justification for sealing court records ends “once everything is over and done with” in a case. Superior Court Judge Robert Bell also indicated a willingness to consider unsealing some court orders that authorized the use of secret surveillance.

The surveillance equipment—known as StingRay, Hailstorm, AmberJack or TriggerFish—imitates a cellphone tower and enables officers to uncover the location of cellphones and wireless devices in the area, their serial numbers and other information. Charlotte-Mecklenburg Police have denied using the surveillance equipment to eavesdrop on conversations or store data from innocent people.

A number of Charlotte criminal defense attorneys told the Observer that they were unaware of CMPD’s use of the equipment until the Observer’s recent stories on the matter. In the stories, CMPD acknowledged that law-enforcement officers have been using the surveillance equipment for at least eight years.

Trend sees elected officials picking and choosing the laws they will enforce

Published on: October 28, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

Bill Stevenson became the latest North Carolina magistrate to resign his post in the wake of court rulings that paved the way for same-sex marriages to being in the Tar Heel State. The Gaston County magistrate—like at least six others in the state—cited religious objections to same-sex marriage as the reason for his resignation.

Magistrates, judges and clerks were warned by North Carolina’s Administrative Office of the Courts that if they refused to officiate same-sex weddings, they could be suspended, removed from office, or face criminal charges. Refusing to perform same-sex weddings, a memo warned, constituted a willful violation of a magistrate’s duty to uphold the Constitution of the United States.

The magistrates may be wondering exactly who is bound by the law, since the state’s highest law-enforcement official—Attorney General Roy Cooper—announced in July that he would not defend North Carolina’s State Constitutional Amendment banning same-sex marriage. At the time, Cooper correctly predicted that the Amendment would be overturned, but it is undisputed that he instructed justice department attorneys to ignore then-existing law when he ordered them to “stop making arguments we will lose, and instead move forward.”

Cooper was not alone. At least seven other state attorneys general refused to enforce bans on same-sex marriage. In each case, the attorneys declared that state laws or state constitutional amendments banning same-sex marriage either violated the Constitution or created ethical conflicts for lawyers asked to defend the bans.