Dosing someone with drugs might not be assault with a deadly weapon

by James Norman

John "Hannibal" Smith appealed out of a conviction of assault with a deadly weapon for assaulting the victim, Bosco "B. A." Barracas, by tricking him into taking a near-lethal dose of barbiturates.

Smith and Barracas were part of a private investigation firm found driving a impromptu welded tank-like vehicle near the scene of a logging company who were apparently trafficking in stolen identities. The area was riddled with bullets, but there were no injuries. The Ashe County Sheriff's Office detained all present for questioning. When questioned, Baraccas stated that he didn't remember how he got here and Smith volunteered that he administered a large dose of phenobarbitol to "help" Barracas get on the helicopter. Baraccas reacted on the scene with horror and surprise, indicating that this may have happened in the past. He called Smith a "fool" and told him that he pitied him.

Smith, giving a celebratory thumbs up

Smith, giving a celebratory thumbs up

At trial, evidence showed that Smith indeed dosed Baraccas with phenobarbitol. The Court instructed the jury to find that the drugs were, as a matter of law, a deadly weapon. Smith contested this instruction, arguing that there was no evidence presented that the drugs were deadly. The Court of Appeals agreed. Although a conviction of assault could be upheld, the State did not present adequate evidence to uphold the assault with a deadly weapon conviction.

As a side note, Soldier of Fortune magazine reported in the May issue that Barracas and Smith have made peace in exchange for "one thick gold chain and a promise that it won't happen again." Also of note, Smith was heard walking out of the Courthouse saying, "I love it when a good defense comes together."

Mayor immune from suit after shark attack

by James Norman

Estate of Kitner vs Vaughn (Mass. Court of Appeals, 1976)

The estate of Alex Kintner sues Larry Vaughn, the mayor of Amity, a resort town in Massachusetts following his unfortunate death at the hands, or jaws as it were, of a great white shark, nicknamed "Bruce". Plaintiffs seek damages due to Vaughn's decision to keep the beaches open despite the warnings from his chief of police and the advice of a noted scientist. The Court below granted defendants motion to dismiss as his actions were performed in his official capacity and therefore he was under qualified immunity from civil suit.

Mayor Vaughn feigning sadness following his fateful decision

Mayor Vaughn feigning sadness following his fateful decision

Under the law, executive officials acting in their official capacity are immune from civil suits unless the action in question violated a constitutional right or clearly established law. The court found that Mayor Vaughn's decision did not violate the law or constitution. Further, the Court held that the decision to close the beach was made in official capacity, despite any local legislative authority. The Court further noted that "if we allow civil suits against public officials every a supernaturally large shark attacks someone in this country, then the Courts would be overrun with lawsuits and the practice of Justice would slow to a crawl."

No right to eat others in defense of property where they have a legal right to be there

by James Norman

NC v. Troll (N.C. App 2017)

In 1995, Buford Troll built a bridge over a creek running through a 25 acre plat (the Bjornfeld plat). In 2017, three brothers (Billy, Grant, and Purvis Gruff) purchased the Bjornfeld plat with the intent of living there and grazing thereupon.

Bridge over Bjornfeld Plat (used under CC license)

Bridge over Bjornfeld Plat (used under CC license)

While the brothers were moving in, Troll attacked each of them in turn, attempting to eat them. Troll was arrested, tried, and found guilty for three counts of attempted murder. He appealed from those convictions, claiming that the court committed reversible error by not giving the jury an instruction on defense of property.

At trial, the defendant attempted to present the defense that Troll was defending his property, which he had acquired by adverse possession in 2015, from the unlawful entry by the victims. The Court agreed that the bridge indeed belonged to Troll through his open, hostile, and continuous use. The court had questions of whether the use was exclusive as there was evidence that the bridge was used by the previous owner, who paid tolls for it's upkeep, but still granted that Troll had a right to claim title to the property. However, with that title comes the easement to allow the brothers Gruff to cross. As such, the court concluded, that even if Troll had the right to defend his property using deadly force, he could only do so against someone who had no legal right to be there. The Gruff brothers clearly were authorized to be present on the bridge, so Troll had no right to defend his property by attempting to eat them for merely "trip-trapping" over his bridge

The Court concluded that the failure to advise the jury on defense of property was not error.

Further, the Court stated that there was no error in not giving an instruction for self defense as to Purvis Gruff as Troll initially attempted to eat Mr. Gruff, who defended himself by butting Troll off of the bridge.

Reasonable suspicion needed for arrest of probationers

by James Norman in , , ,

Jones v. Chaundrasuwan, No. 15-1110(4th Cir, 4/28/2016)

Apparently, this gentleman has not partied with many probationers. Found here, under CC license. Presumably not Stanley Jones.

Apparently, this gentleman has not partied with many probationers. Found here, under CC license. Presumably not Stanley Jones.

Stanley Jones was a probationer who was put on probation in North Carolina and transferred to Georgia for supervision under the Interstate Compact for Adult Offender Supervision. When this happens, the sending state is responsible for collection of any amounts due and for prosecuting any violations.

Mr. Jones failed to make payments and his North Carolina probation officers made two attempts to contact him (but never bothered to contact his probation officer in Georgia) and then issued an order for arrest for non-payment and absconding probation. He was arrested in Georgia and lost his job. He paid all amounts due and was released. The subsequently sued the probation officers individually under 42 USC 1983 and malicious prosecution.

Under 1983, the Plaintiff may recover for violations of his constitutional rights unless the defendants have qualified immunity. That is, that the Defendants cannot violate a clearly established right.

Unfortunately for Mr. Jones, the right of a probationer not to be arrested without reasonable suspicion has never been established. Until now.

The Court held

1)      Probation officers must have reasonable suspicion before seeking the arrest of a probationer for allegedly violating conditions of his probation.

2)      Reasonable suspicion in the arrest context is present when there is a sufficiently high probability that a probationer has violated the terms of his probation to make the intrusion on the individual’s privacy interest reasonable.

3)      A payment plan is a condition of probation that must be provided to a probationer in writing and, under North Carolina Law, if a payment plan is not provided to the probationer in writing, it is unenforceable. No payment plan was provided in this case.

4)      Prior to alleging absconding, a probation officer must at least attempt to contact the agency actually supervising the probationer.

5)      In this case, the Defendants did not have reasonable suspicion before seeking the arrest of a probationer for allegedly violating conditions of his probation.

6)      This was not a clearly established right at the time the probation officers sought Jones’s arrest.

7)      The probation officers have qualified immunity.

8)      The defendant can’t get any of that sweet sweet cash from the probation officers.

The big takeaway here (for me, at least) is not the main holding but that a payment plan must be in writing to be enforceable. This was news to me. It would follow that probationers that didn’t pay can hold the division to the requirement that they provide a copy of the payment plan during a violation hearing.

(Also, for fun, I checked for Stanley here, which is a list of NC teachers with revoked licenses. There is a shocking number of revocations for inappropriate teacher student relationships. Say what you will about lawyers, but our bad ones steal money, bad teachers steal innocence.) 



Set up automatic backup of photos and videos before dealing with the police

by James Norman in

In this modern age, people have learned to deal with the misbehavior of the police by pulling out their smart phones and recording. The problem is, the police don't like being recorded so much and will inadvertently break or confiscate phones, rendering those recordings useless.

See, I do it too!

See, I do it too!

Not so if you have auto backup on videos! In Toronto, Abdi Shiek Qasim was approached by police for no good reason and then they attempted to enter his apartment. He pulled out his phone to record the interaction and within ten seconds, one of the officers slapped it out of his hand. He was arrested for assaulting an officer following this. His phone went mysteriously missing. But, thanks to automatic backup, he had a video available in his google account. The Court cleared him of the charge, stating:

“Officer Dhaliwal’s swing of his arm and hand was the very first physical force during the interaction. The accused didn’t grab a hold of the belt of Officer Gul in advance of this action by Officer Dhaliwal. I believe that Officer Dhaliwal’s action amounted to an assault against the accused.”

So, set up your automatic backup today. 

Found here. Original story with video posted in the Toronto Star

Serious studies: Filled pauses in the US Supreme Court: They're just like, um, us.

by James Norman

Constantine the Philosopher University in Slovakia has completed a seemingly-silly study in which they analyzed the filled pauses of our Supreme Court. They found that Judge Kennedy used the most pauses and Ginsburg used the least, but they all favored "um" over the seldom used "uh," "ah," and "eh."

Summary chart from the Study

Summary chart from the Study

Unless I'm misreading the stilted conclusion, it appears that the justices were more likely to give a favorable conclusion if the content of the filled pause was closer to the one used by the arguing attorney. 

The Annals of Improbable Research has more.

The study can be found here: ‘Entrainment in spontaneous speech: the case of filled pauses in Supreme Court hearings’ Proceedings of the 3rd IEEE Conference on Cognitive Infocommunications 2012.


Screwed by the Town of Cary AND by the Fourth Circuit

by James Norman in ,

Bowden v. Town of Cary, 22 January, 2013

Holding: 1) Aesthetics are more important than your right to free speech, 2) A sign ordinance is okay so long as it still allows self expression in a less meaningful way.

Actual exhibit to the Court's Opinion! 

Actual exhibit to the Court's Opinion! 

William Bowden believed that the Town of Cary damaged his property from runoff from construction projects. So he reacted like any rational person and spray-painted "Screwed by the Town of Cary" in large fluorescent letters on the side of his house. The Town of Cary responded by serving him with a zoning violation because his "wall sign" was too large and used impermissible fluorescent lettering.  

The District Court agreed with Mr. Bowden and allowed him to continue his Quixotic Free Speech graffiti. 

The Fourth Circuit, ruling from their dark castle in Richmond, felt differently. They decided that the sign ordinance was content neutral (it was not aimed at any particular viewpoint). Therefore, it must decide whether the ordinance furthers a substantial government interest, is narrowly tailored to further that interest, and leaves open ample alternative channels of communication. The Court then goes on to say with minimal further explanation "it is beyond dispute that the Town’s stated interests in promoting aesthetics and traffic safety are substantial." (Three fallacies committed here; extra credit if you can name them!)  Further, because the sign ordinance still allows a person to say what he wants to say, it is narrowly tailored to further that interest.

This should be a deeply disturbing ruling from those people who feel like they should be able to do whatever they want with their property. It should be also be deeply disturbing to people who hope the world continues to be populated by suitably entertaining people.

Of note here is that the Plaintiff is actually the administrator of his estate. That means that the fight of a crazy old man continues on from the grave. The world is awesome.

Duke Lacrosse Update: Ugh!

by James Norman in , ,

The 4th Circuit issued an opinion today in Evans et. al. v. Chalmers et. al., the civil suit brought by the Duke Lacrosse defendants against pretty much everyone.

Yep. More of this.

Yep. More of this.

If you're the kind of person who likes to gawk at accidents on motorways, the case is here

Having read it, I see nothing helpful to the actual practice of law. I am only assured that if the defendants were poor minorities, they probably couldn't expect so much "justice" from the system.

Cases: Right to bear arms does not extend to illegal aliens

by James Norman in , , ,

US v. Carpio-Leon, 4th Cir., 12/14/2012

Upon being charged with possession of weapon while being illegally or unlawfully in the US, Mr. Carpio-Leon argued that the law was unconstitutional pursuant to the second amendment. 

The Court concluded that the Second Amendment does not provide protection to illegal aliens because they are not "law-abiding members of the political community."  Prohibiting illegal aliens, as a class, from possessing firearms is rationally related to Congress’ legitimate interest in public safety. 

Cases: 4th Circuit approves 60 month sentence for a "legend in the dogfighting community"

by James Norman in , ,

US v. Hargrove, 4th Cir. 12/12/2012

Harry Hargrove was a "legend in the dogfighting community. By Hargrove’s own admission, he has been involved in dogfighting activity for over four decades, and at one time he had approximately 250 fighting dogs on his property. Information in the record shows that offspring from one of Hargrove’s fighting dogs, Midnight Cowboy, sold for large sums of money across the country because of its aggressiveness and propensity for fighting. Hargrove advertised his dogs in various dogfighting-related publications, and he is famous in the dogfighting industry for his dogfighting, his breeding activities, his training regimen, and his ability to produce aggressive fighting dogs. His prior criminal history includes a 1983 Georgia felony dogfighting conviction, a 1993 North Carolina animal fighting misdemeanor conviction, and a 2001 North Carolina animal cruelty misdemeanor conviction."

Humans are just the worst.

Humans are just the worst.

Following a conviction of violating the Animal Welfare Act by dogfighting, the District Court sentenced the Defendant to 60 months. The sentencing guidelines suggest a sentence of 0-6 months. The District Court opted for an upward variance noting: "I would say that other than the criminal dog fighters in America, every other person in America would be shocked beyond belief that you could do what [Hargrove] did and come out with a federal sentence of zero to six months....  No one could defend that. No judges. No legislators. No president."

The Fourth Circuit approved the variance, stating that the district Court's rationale was necessary to accomplish the objective of sentencing and had the discretion to increase the sentence to the statutory maximum.

Afterword: For people who like gory details: "the officers found multiple tools and indicia of the dogfighting trade throughout Hargrove’s property, including: a fighting pit that was covered in a significant amount of blood; "break sticks" which are used to break the bite hold of a dog during a fight; modified jumper cables that were used to electrocute dogs; a large debris pit that contained, among other things, dog carcasses; a bloodcovered treadmill with wooden sides; a springpole, which is used to build up a dog’s leg and jaw muscles; an old "jenny," which is used to increase a dog’s stamina by having the dog run continuously for extended periods of time while chasing a bait; large quantities of animal medicines; and hundreds of canine pedigrees."

Cases: Common Law marriages from Texas are not valid in North Carolina where there is slight evidence that there is no actual agreement.

by James Norman in , ,

Garrett v. Burris, NC Court of Appeals, 4 Dec 2012

Hulya Garrett requested a divorce from a man that she believed to be her common law husband. The Court denied her request, saying that there was never an agreement to be common law married, despite the fact that they lived together, wore rings, introduced themselves as husband and wife, and filed taxes as married.

North Carolina does not allow common law marriages, but does recognize valid common law marriages from other states. A common law marriage requires 1) an agreement to be married, 2) living together as husband and wife, and 3) holding out to other people to be married.

In this case, the husband denied the marriage because there was no ceremony, no joint accounts, she never officially changed her name (although she used his surname in public and in unofficial documents), and in deeds indicated that she was unmarried. The trial Court and Court of Appeals decided that there was insufficient evidence to show that it was more likely than not that there was ever an actual agreement to marry. 

Judge Beasley quite rightly dissented from the Court's opinion, stating that there was sufficient evidence to support a common law marriage early on in the marriage, despite any evidence that later on, they were acting as if not married. Since there was a dissent, this will likely be addressed and, hopefully, corrected by the NC Supreme Court.

For future reference, if someone sues you in the State of North Carolina saying that you have a common law marriage, all you have to do is say that you never actually agreed to do so, despite whatever mountain of evidence may indicate that you did, in fact, marry the person. And if you do get common law married, make sure that you do nothing to indicate that you are not properly married. Apparently this state is itching to void marriages.

Cases: It's against the law to wear military dress and insignia if you aren't in the military. Who knew? Not Hamilton!

by James Norman

US v. Hamilton, 4th Cir, 11/9/2012

Wear these in public and become public enemy number one!

Wear these in public and become public enemy number one!

An honorably discharged disabled serviceman shows up at a veteran's recognition ceremony wearing full military dress (with medals he never earned). The government was not amused. In it's typical authoritarian style, he was politely asked to leave (by means of an arrest for criminal charges).

Mr. Hamilton challenged his convictions on the grounds of the first amendment. The Fourth Circuit affirmed the conviction, stating that there was a compelling state interest to maintain the symbolic value of military insignia and to "ensure that the individuals displaying these honors to the general public are those who actually have receive such honors."

Our government is very forgiving of people who commit fraud on investors, consumers, or the general public. But God save you if you choose to do so while wearing military insignia. 

No word yet on whether it's okay to continue to wear "sexy soldier" costumes sold at Halloween.

More analysis here and here.

Cases: In which we learn that wearing form fitting shirts may get you in trouble.

by James Norman in , ,

US v. Vaughn, decided 11/29/2012, 4th Cir.

After being stopped for travelling 79 in a 70 miles per hour zone. In the vehicle, the Officer observed four cell phones in plain sight and a passenger who acting normally but was exhibiting "high levels of nervousness" -- he was shaking and breathing heavily with trembling hands and the officer "could see his heart beating through his shirt." (emphasis added by me, to highlight asininity).  In addition, the driver and passenger gave conflicting answers about where they were going. After a somewhat prolonged questioning for a speeding stop, a dog arrived and detected drugs.

The Court decided that the prolonged stop was acceptable due to the nervousness, cell phones, and conflicting stories.

The lesson to be learned is that, should you choose a career in drug trafficking, stay calm. We can also learn that criminals generally wear over-sized clothes not as a fashion statement, but to thwart the superhuman observation abilities of the police.

In this case, an emergency includes a traffic stop.

In this case, an emergency includes a traffic stop.

Another take on this case can be found here.

Freakonomics Radio explains how bail bonding works

by James Norman in

Last year, Freakonomics Radio made a show explaining how the bail bonding system works. The US is one of two countries in the entire world that relies on the bail bonding (i.e. bounty hunters) system to ensure that Defendants appear in Court. Surprisingly, it is 97% effective, more than two times that of the police.

The broadcast includes the economic benefits of such a system, but also a unique insight into the methods used by bail enforcers:

The bottom line is we look for the fugitive and the Judas. Everybody has a Judas in their life. An ex-girlfriend might betray him because he ran off with someone else, a rival crack dealer will betray him because he wants that guy out of the system because he’s competition. There’s always someone that will betray you for love, out of caring.


by James Norman

"We note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.... Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception." U.S. v. Foster, 634 F. 3d. 243 (2011).

Aesop presents: The jerk and his wife

by James Norman in ,

Mussa v. Palmer Mussa (NC Supreme Court decision August 24, 2012) 


Juma and Nikki are married for 12 years. They divorce. The Court Orders that Juma pay Nikki some money. Juma is unhappy with this. All of a sudden he recalls that he had sort of married someone else many years ago, so his marriage to Nikki is void, saving him from paying her money. Unfortunately for Juma, his marriage was performed by an uncredentialed charlatan who has long since disappeared. If that marriage isn’t valid, then he can’t challenge the second marriage.

The moral: If you’re enough of a jerk, you can delay having to pay your ex-wife for quite a bit of time.

The legal message is a bit less obvious. If Juma had been legitimately married before, then he would have a valid claim that his second marriage was void because it was a bigamous marriage. There are people who claim that the sanctity of marriage is threatened by the people with similar genitals who love each other. People like Juma and laws that support his position cause more damage to the “sanctity” of marriage than could any state-sanctioned union loving partners of any sex.  It, then, becomes obvious that those people who oppose an expansion of marriage don’t care about cases like Juma’s. They only care that society conforms to what is comfortable to them. A society that ensures that people who love each other stay apart and people like Juma are free to marry who they wish.

Norfolk Four Update: Fourth Circuit Declares that Sex Offender Registries are not Considered "Custody"

by James Norman in ,

The Fourth Circuit published US v. Flaherty yesterday, in which Eric Wilson, one of the "Norfolk Four, " had filed a federal Habeas Petition challenging his conviction. He argued that he was in custody because the requirements of the sex offender registry are sufficient restraints on liberty to be considered custody.


Wilson was convicted of rape in 1999 after a confession was coerced by Detective Robert Glenn Ford. Ford has since been convicted of  Conspiracy to Commit Extortion under Official Right, Extortion Under Official Right, and False Statement for his behavior in this case. He was sentenced to 360 months in Federal Custody. If you've never heard of this case, PBS did a Frontline documentary called "The Confessions" about it. It's well worth anyone's time to view if you want to develop or bolster a healthy distrust of law enforcement.

In the Case, the majority opinion indicated that the requirements of the Sex Offender Registry are too trivial and too collateral to satisfy the requirements of Custody. Judge Wynn properly points out in the dissent that the registry requires checking in with local law enforcement and maintaining an address within certain bounds (not to mention the social scrutiny involved), which is a significant restraint on his liberty and should be considered. 

The Court suggests, in a well-meaning bout of verbal diarrhea, that "Wilson has alleged compelling claims that significant legal burdens and disabilities imposed on him are wholly unjustified by any legitimate governmental interest; morally and legally, he is clearly entitled, in my judgment, to a judicial forum to test the accuracy of his claims. If, as the dissent posits, Virginia law would foreclose access to such a judicial forum under coram nobis or some other extraordinary procedure, I believe a due process claim under 42 U.S.C. § 1983 would raise grave issues of profound moment deserving of serious judicial examination." 

Apparently, there is some worry that should the Court decide that a sex offender register is "custody" it would open the floodgates of litigation and abhorrently allow yet another avenue for people for relief  merely on the grounds that they are actually innocent.

This raises the bigger political question of whether it is good for our Courts to be so dogmatic in their approach to these issues given the clear innocence of Mr. Wilson. Both sides will continue to argue the political and pragmatic implications of "judicial activism". In the meantime, people like Eric Wilson will live their lives, unable to find employment, unable to adopt, unable to live in certain areas, having to alert the government where he lives at all times among a populace that will believe him to be a dangerous rapist despite the overwhelming evidence to the contrary FOR THE REST OF HIS LIFE.

I presume that his attorneys will seek review by the Supreme Court. So, it appears that the government is not finished ruining his life yet.

Court of Appeals Saves Us from "Chaos and an Absence of Justice," Criminal Cases, NC Court of Appeals 7/17

by James Norman in

State v. Kelly 

A particularly horrible baby killing case in which the Court of Appeals informs an overzealous appellate attorney that a jury is not to be instructed on jury nullification lest “it would lead to chaos and an absence of justice in North Carolina.” Sounds like the Court of Appeals wanted to get in on some of that overzealous action.


State v. Askew and State v. Talbert 

The State filed a probation violation against Defendant, who was to have an approved residence plan upon release from prison. This violation was filed against him prior to his release from prison because he couldn’t set up anything while still in prison. The Court of Appeals finds one cannot violate their probation before given the opportunity to do so. Precogs be damned.


State v. Bell

Three holdings (of interest):

1)      No need to indicate voluntariness of a consent to search in an Order if no dispute in evidence as to voluntariness.

2)      The elements of kidnapping are part of certain offenses. Unless the kidnapping elements are not related to the accompanying offense, a Defendant cannot be convicted of both.

3)      If you tell a kid to wait in a room while you hold his mother at gunpoint and force her to perform sexual acts, you have kidnapped him.


State v. Brunson 

Again, three holdings (of interest):

1)      Crazy defendant who kept firing attorneys is not denied effective assistance of counsel.

2)      It’s no big deal if you are denied probable cause hearing so long as it does not lead to a possibility of a different result at trial. Constitutional rights? Pshaw!

3)      The trial court may quash subpoenas if there is no possibility for a different outcome.


State v. Collins 

Defendant has buyer’s remorse after pleading to assault on handicapped person. The Court finds that the plea was his informed choice and that there were facts to support the plea. He then goes on to challenge the indictment for not indicating the type of handicap or that the Defendant knew of the handicap. The Court upholds the conviction.   


State v Harris 

If you don’t object at trial to statements made during closing, there must be “gross impropriety” in order to require the trial Court to intervene on its own.


State  v. Hunt 

When you have previously sexually assaulted someone, it’s a bad idea for your attorney to ask you if you have “ever done such a thing before,” but it’s not ineffective assistance of counsel because it was not prejudicial in light of the other evidence. It is, however, ineffective assistance of counsel to fail to argue a double jeopardy issue.

State v. Mather 

Defendant convicted of carrying concealed weapon despite having a permit following bringing handgun into a bar and getting his drink on. It’s illegal to carry a concealed weapon while drinking. Defendant argues that the indictment was insufficient because it does not state allege that the Defendant had been consuming alcohol. Court of Appeals holds that an indictment need not include an exception if it is not the within the State’s burden to prove that said exception applies.  


State v. Robinson 

Defendant denied motion to be evaluated to determine whether he is competent to stand trial. The motion was made on the eve of trial with affidavits supporting a deteriorating mental condition. The Court denied the motion and proceeded with trial. The Court of Appeals states that this is an abuse of discretion if there is supporting documentation showing a need for evaluation. They may have remanded for new trial but, unfortunately for the Defendant, he put his doctor on the stand on the fourth day of trial who stated that he believed the Defendant to be competent.

Motion to suppress statements made during an recorded interrogation because he is borderline retarded (really) and didn’t understand his rights. The Court noted that he had previous experience in the criminal justice system, was not misled by the officers, and not deprived of necessities. Absent any other reason to believe that he didn’t understand the Miranda warning and waiver, the Court need not suppress the statements.


State v. Rollins 

During a rape trial, the trial Court closed the Court during victim’s testimony over Defendant’s objection. Court of Appeals states that to close a hearing (1)  “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,” (2)  “the closure must be no broader than necessary to protect that interest,” (3)  “the trial court must consider reasonable alternatives to closing the proceeding,” and  (4)  “it must make findings adequate to support the closure.” An absence of findings altogether is error. There must be sufficient findings for the Appellate Courts to review the propriety of the decision. The Court remanded the case to the trial court for a determination as to whether closure was necessary.

The Court also determined that there was an error in determining that out-of state conviction for burglary in Florida was sufficiently similar to a NC conviction for burglary. Instead, burglary in Florida is similar to felony breaking and entering in NC. Remanded for new sentencing hearing.  

No liability when hit in face with balls-- and other things that civil litigators find interesting

by James Norman in ,

(Civil Cases decided by N.C. Court of Appeals 7/17/2012)


Bryson v. Coastal Plain League  

Defendant hit by a wild pitch by pitcher warming up in bull pen. The Court follows a line of cases that says safe areas covered by screening only necessary where the danger is greatest (i.e. behind home plate). No duty of care exists if someone is injured in an unusual way by a thrown or batted ball. In the end, baseball is still boring, but at least there’s the chance to see someone hit by a ball. 


Bigger v. Arnold  

An executor of an estate does not have standing to appeal case as he is not an aggrieved party. Only the beneficiaries have standing to do so. It seems, though, that an executor can spend the estate's money filing an appeal that they should have known they never had standing to file.


Bullard v. Wake County

Court affirms the principle that County inspections are in place to annoy, but not to protect after stating that Wake County is immune from suits for negligent inspections.


Fontana v. Southeast Anesthesiology Consultants 

Employment contract which requires arbitration for any disputes concerning termination of employment must go to arbitration and stay any court proceeding about that issue.  A case that teaches us, that if one is verbose in explaining something obvious, then we may overlook its obviousness.


In RE: V.A. 

The Interstate Compact on the Placement of Children requires that when placing a child outside of the state, following a finding that a juvenile is abused, neglected, or dependent, the receiving state must first decide whether the placement is in the best interest of the child. In this case, South Carolina stated that the placement was inappropriate due to the proposed placement’s history with Child Protective Services. The trial court appeared to ignore this and did it anyway. Our Court of Appeals did not approve.


James v. Charlotte-Mecklenberg County Board of Education 

Assistant principal acts inappropriately around female teachers following a bout with colorectal cancer. He wasn’t present during his dismissal hearing due to a scheduling issue. Court of Appeals reviews the record and sees no issue with the board’s decision.    


Hutchens v. Lee 

In which the Court of Appeals reminds me why I do not now, nor do I ever intend to practice Workers Compensation law.



Court of Appeals Issues Empty Threats to Small Town Judge

by James Norman in ,

The Court recently decided Sisk v. Sisk, which made the lackluster opinion that a motion for new trial must be heard before the judge that heard the original trial. In that case, the trial judge, K . Dean Black took about two years to enter a judgment in an equitable distribution action. Judge Black had previously been reprimanded by the Judicial Standards Commission for this case.

The Court of Appeals issued an unsolicited chiding to Judge Black: “This does not mean that Judge Black is totally blameless in this matter. The trial was held in June and July of 2008, and the judgment was not filed until 13 July 2010. This delay clearly contributed to the germination of the issues raised by this appeal. The record reveals that Judge Black was assigned to hold court in another county shortly after trial in this matter was conducted. However, this is not an uncommon problem in multi-county judicial districts. It cannot excuse a two-year delay in the entry of the judgment in this case. Our State Constitution provides that ‘right and justice shall be administered without favor, denial, or delay.’ N.C. Const. art. I, § 18.” In other words, shame on you smaller counties for not expediting the administration of law and if you continue to do so, the Court of Appeals will continue to do nothing about it (about two years later).