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Articles by Dale Chappell

Iowa Supreme Court Announces Indecent Exposure Statute Does Not Apply to Still Images of Genitals

by Dale Chappell

Interpreting the word ‘exposes’ in Iowa’s indecent exposure statute, the Supreme Court of Iowa held on February 2, 2018 that texting an image of one’s genitals to another does not constitute “indecent exposure” and that counsel was ineffective for failing to challenge the sufficiency of the evidence.

After Jose Lopez texted an image of his erect penis with the message “Me in my glory” to a woman he had been pursuing, he was charged with indecent exposure, in violation of Iowa Code §709.9 and stalking—violation of protective order or injunction under §§ 708.11(2) and 708.11(3)(b)(1). A jury found him guilty of both counts. He was sentenced up to five years in prison for the stalking count and a determinate term of one year in jail and a special sentence of ten years for the indecent exposure conviction under § 903B.2. The court ordered all sentences to run consecutively. Lopez appealed, and the Iowa Supreme Court agreed to hear his case.

Before the Supreme Court, Lopez asserted, among other claims, that his trial counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the indecent exposure charge ...

Mississippi Supreme Court Reverses Conviction Ruling; State Failed to Prove ‘Constructive Possession’ of Marijuana

by Dale Chappell

The State failed to prove that packages of marijuana hidden in a car truck were in the “constructive possession” of a passenger, who was unaware they were there especially when the driver claimed ownership, the Supreme Court of Mississippi held October 12, 2017.

Marvin Carver and his half-brother Nicholas Ingram took a road trip to surprise Ingram’s mother for the holidays. When Ingram was pulled over for speeding, he consented to a search of the car, which turned up a gun under Ingram’s seat and less than a gram of marijuana in the console. Two bags of marijuana also were found hidden in the trunk. Both men waived their rights and talked to law enforcement. Ingram admitted the gun and marijuana were his and that Carver had no idea about the items. Carver admitted they talked about smoking marijuana over the holiday, but did not admit that he was aware of the marijuana in the trunk. Law enforcement assumed he was.

Ingram pleaded guilty, but Carver went to trial. Carver was found guilty of possession of marijuana and sentenced to six years in prison. His conviction was upheld on appeal.

Carver then appealed to the Mississippi Supreme ...

Sentencing Court’s Grant of Prior Custody Credit was Not ‘Clear Error’ to Allow for Removal

by Dale Chappell

The government’s “eleventh hour” motion to “correct” a sentence to remove credit for time served in a related case before federal sentencing was improperly granted by the district court, the U.S. Court of Appeals for the Fifth Circuit held November 16, 2017.

When Derrick Smothers, Terrell Smothers, and Thomas Hankton were sentenced, the district court gave them credit for time already served on related state charges prior to federal sentencing. The government did not object. However, the government — at the “eleventh hour” — backtracked and filed a motion under Federal Rule of Criminal Procedure 35(a) to “correct” their sentences in order to remove the credit for pre-federal sentencing custody. The district court granted the motion. All three appealed.

On appeal, the Court focused on Derrick’s sentence, as any ruling on his would affect all three. Derrick, like the others, had served a prior state sentence for a case related to his federal case, and the district court reduced his sentence to account for that state custody time. Under Rule 35(a), the court had just 14 days to “correct” any “clear error” in Derrick’s sentence. The government filed its motion on the 13th day ...

Eleventh Circuit Holds Court May Not Dismiss 2255 Motion by Invoking Collateral Attack Waiver Sua Sponte

by Dale Chappell

A U.S. district court cannot, “of its own volition,” invoke a collateral attack waiver in a plea agreement to dismiss a § 2255 motion, the U.S. Court of Appeals for the Eleventh Circuit held on November 6, 2017.

“Efficiency can be a virtue, particularly for a court. But sometimes we can have too much of even a good thing. That’s what happened here,” Judge Rosenbaum began the Court’s opinion. The “efficiency” referred to was when District Court Judge Conway dismissed Michael Burgess’ § 2255 motion on her own initiative because of a waiver in his plea agreement stating, in effect, he would not pursue a motion under 28 U.S.C. § 2255, which is the federal statute governing challenges to a prisoner’s conviction or sentence. In his plea agreement, he expressly waived his right to appeal, which included his right to collaterally challenge his conviction and sentence.

The court accepted the plea agreement and sentenced him to 180 months in prison. He subsequently filed a direct appeal, but his lawyer filed a motion to withdraw under Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious appellate issues ...

Texas Court of Criminal Appeals: Furtive Gestures, Brief Visit Not Probable Cause

by Dale Chappell

The Court of Criminal Appeals of Texas (“CCA”) held that “furtive gestures” alone did not give police probable cause to search a vehicle under the automobile exception to the Fourth Amendment’s warrant requirement.

When a marked police car pulled behind Andreas Marcopoulos’ truck, police said he made “furtive gestures” toward the center console. Police watched Marcopoulos visit a bar known for its drug scene for about three to five minutes, then pulled him over after he reportedly committed a traffic violation. He was immediately arrested. The officers searched his truck and found three small baggies of cocaine.

Marcopoulos pleaded guilty after the trial court denied his motion to suppress, but he reserved his right to appeal the issue. On appeal, Marcopoulos again argued that the search was unreasonable and had exceeded the scope of his arrest. A divided First Court of Appeals, however, rejected his claims and upheld the search under the automobile exception. The court ruled that Marcopoulos going to a bar “known for selling narcotics,” his short visit there, and his furtive gestures gave the police probable cause to search his truck under the exception. The CCA agreed to hear Marcopoulos’ case.

The narrow ...

N.C. Supreme Court Rules Deficient Indictment Not Jurisdictional and Issue Can’t be Raised for First Time on Appeal

by Dale Chappell

Deviations from statutory requirements are not jurisdictional and must be “properly preserved” for appellate review and not raised for the first time on appeal, the North Carolina Supreme Court held on November 3, 2017.

After Sandra Brice was found guilty by a jury in 2015 of habitual misdemeanor larceny, a felony, she challenged for the first time on appeal the indictment’s failure to comply with the requirements under N.C.G.S. § 15A928. Brice argued that the statutory requirements are jurisdictional, and the Court of Appeals agreed and overturned her conviction.

On appeal to the North Carolina Supreme Court, the State argued that failure to comply with the statute’s requirements is not jurisdictional, pointing out an apparent split between the appellate courts on the issue. The State asserted that “minor defects” that do not prejudice a defendant should not allow dismissal of the indictment. Brice countered that compliance with the statute is “no mere formality” to be ignored. The Court agreed with the State that compliance with the statute is not a jurisdictional defect requiring dismissal of the indictment, settling the split among the appellate courts.

The Supreme Court’s focus, however, was on the fact that ...

West Virginia Supremes: Previous Nonviolent Crimes, Life Sentence Unconstitutional

by Dale Chappell

The Supreme Court of Appeals of West Virginia held that a life sentence based on two prior driving on a revoked license felonies violated the West Virginia Constitution’s provision that “[p]enalties shall be proportioned to the character and degree of the offence.”

After Marc Kilmer was found guilty by a jury of unlawful assault, among other offenses, the State filed a recidivist information requesting a life sentence based on his two prior convictions for driving while license revoked for driving under the influence. Kilmer filed a motion in opposition, arguing that the sentence was in violation of the “proportionality clause” in Article III, Section 5 of the West Virginia Constitution. The sentencing court denied Kilmer’s motion and imposed the life sentence. He appealed, raising the same argument.

Under West Virginia Code § 16-11-18(c), a person“shall” be sentenced to life in prison if “twice before convicted in the United States of a crime punishable by confinement in a penitentiary.”

The Supreme Court explained that the “constitutionality of the recidivist statute is well-established,” but the Court has “historically adopted a rather strict and narrow construction” because of its harsh result. The Court ...

Fourth Circuit: No Qualified Immunity for Deputies in Shooting of Armed Suspect

by Dale Chappell

An officer does not possess the unfettered authority to shoot a member of the public simply because that person is carrying a weapon,” the U.S. Court of Appeals for the Fourth Circuit said, upholding the district court’s denial of defendant deputies’ request for summary judgment in a 42 U.S.C. § 1983 excessive force lawsuit filed against them.

On an early August morning in 2012 while responding to a domestic disturbance call, Haywood County Deputies Michael Price and Keith Beasley observed David Hensley and his two daughters scuffle on the front porch. They witnessed Hensley strike his older daughter with a handgun in his possession. He then walked off the porch towards the deputies. At that point, they exited their vehicle and fatally shot Hensley.

Whether the muzzle of the gun was pointed towards the ground or at the deputies as he approached them was in dispute. What wasn’t in dispute was the fact that the deputies neither announced their presence nor directed Beasley to drop the gun. The deputies acknowledged that they did neither; in fact, they admitted that neither of them ever spoke to Hensley. 

Hensley’s widow and daughters sued the ...

California Court of Appeal Holds State Must Prove Stolen Car’s Value for Felony Theft of Vehicle Conviction

by Dale Chappell

On January 23, 2018, the Court of Appeal of California, Fifth Appellate District, held that theft of a vehicle worth less than $950 was not a felony but a misdemeanor under Vehicle Code § 10851, which is subject to Proposition 47’s new petty theft provision—Penal Code section 490.2. The Court further held that the prohibition against double jeopardy barred retrial to prove the vehicle’s value.

When D.N., a juvenile, was found to have committed burglary and theft, the State offered no proof that the value of the vehicle was worth more than $950 to trigger the felony charges, yet the juvenile court exercised its discretion and determined the vehicle theft was a felony without this evidence. D.N. appealed.

The issue before the Court of Appeal was whether the State had failed to prove the stolen vehicle was worth more than $950, which is a necessary threshold amount to be considered a felony offense under Proposition 47’s new Penal Code § 490.2. The State argued that Vehicle Code § 10851 did not fall under Proposition 47’s changes, and that even if it did, it could retry D.N. to prove the vehicle’s value ...

Even Prosecutors Can’t Get Secret List of L.A. Cops With Credibility Problems

by Dale Chappell

Los Angeles County Sheriff Jim McDonnell wants to give a secret list of approximately 300 untrustworthy cops to the Los Angeles County District Attorney’s Office, so prosecutors know who not to call as a law enforcement witness in a criminal case. The police union, however, is fighting McDonnell in court to keep the list secret.

The list is known as the Brady list, after the seminal U.S. Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963), which held that a prosecutor’s withholding of favorable evidence from a defendant violates his due process rights under the U.S. Constitution. The list was started in 2014 to track law enforcement officers who have a history of misconduct that could affect their credibility as a witness in a trial. It has grown over the years to include the names of several hundred officers.

California is among 22 states that keep officer discipline records secret from the public eye and is the only state that blocks prosecutors from seeing police personnel records. While the list comprises but a small percentage of the roughly 9,400 sworn officers in the department, officers on the Brady list were used ...




 

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