legal question and answer thread **no discussion**

[nursebeeme]

gritguy,
they are using it right now! (like right after I asked you)... can they stop the tape and expose discrepancies or do they have to play it all the way thru?

tia

 

[johnfear]

Quick question:

Today, we heard a little bit about the life insurance policies from Progress. Around 100K payout. The prosecution danced around the fact that the forms sent were pretty standard and Jason Young sent them back (basically signed for them). I think this was all new to this trial evidence. It had terrible timing and no conclusion.

Is the wrongful death fair game in the criminal hearing as evidence for the pros? Or does the defense have to bring it up to make it a part of the show?

I think they were trying to bait the defense into something with their questioning and I also think they were doing something odd with the Labcorp guy, re DNA and the identity of an additional test subject (MF, I assume).

So, to recap: Is the civil suit available as evidence? That may lead into a longer reply based on the other questions.

 

[gritguy]

I can't see any way the PT could use that prior judgment in their case in chief. The only possibility would be for impeachment, but just guessing the defendant would really have to open the door on it as it could be quite prejudicial and I'm unaware of any basis to let it in.

ETA: I did a bit of refreshing my recollection and the NC Rule 803 specifically doesn't have the federal exception 22 allowing a prior criminal conviction in on a civil suit if it meets certain criteria to prove facts at issue.

 

[gritguy]

Here are some NC Pattern Jury Instructions I have quoted before and that relate to how the judge will probably charge the jury when he instructs them, in regard to evidence, the burden of proof, and weighing it all to decide a verdict.

“There are two types of evidence from which you may find the truth as to the facts of a case -- direct and circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eye-witness; circumstantial evidence is proof of a chain or group of facts and circumstances indicating the guilt or innocence of a defendant. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should weigh all the evidence in the case. After weighing all the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find the defendant not guilty.”

“You should consider all the evidence, arguments, contentions and positions urged by the attorney(s) and any other contention that arises from the evidence; and using your common sense you must determine the truth in this case.”

“Reasonable doubt is a doubt based on reason and common sense, arising out of some or all of the evidence that has been presented, or lack or insufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt.”

“You are the sole judges of the weight to be given any evidence. By this I mean, if you decide that certain evidence is believable you must then determine the importance of that evidence in light of all other believable evidence in the case.”

 

[gritguy]

N.C.P.I. Crim. 101.35. CONCLUDING INSTRUCTIONS--JURY CONSIDER ALL EVIDENCE, JUDGE NOT EXPRESS OPINION, UNANIMOUS VERDICT, SELECTION OF FOREPERSON

Members of the jury, you have heard the evidence and the arguments of counsel. If your recollection of the evidence differs from that of the attorneys, you are to rely solely upon your recollection. Your duty is to remember the evidence whether called to your attention or not.

You should consider all the evidence, the arguments, contentions and positions urged by the attorney(s), and any other contention that arises from the evidence.

The law requires the presiding judge to be impartial. You should not infer from anything I have done or said that the evidence is to be believed or disbelieved, that a fact has been proved or what your findings ought to be. It is your duty to find the facts and to render a verdict reflecting the truth. All twelve of you must agree to your verdict. You cannot reach a verdict by majority vote.

When you have agreed upon a unanimous verdict(s) (as to each charge) your foreperson should so indicate on the verdict form(s).

NOTE WELL: EXCUSE THE ALTERNATE JUROR.

After reaching the jury room your first order of business is to select your foreperson. You may begin your deliberations when the bailiff delivers the verdict form(s) to you. Your foreperson should lead the deliberations. When you have unanimously agreed upon a verdict (as to each charge) and are ready to announce [it] [them] your foreperson should record your verdict(s), sign and date the verdict form(s), and notify the bailiff by knocking on the jury room door (or otherwise summoning the bailiff). You will be returned to the courtroom and your verdict will be announced.

Thank you. You may retire and select your foreperson.

NOTE WELL: After the jury retires and before sending the verdict form(s) to the jury the judge must address the attorneys as follows:

Before the jury begins deliberation the Court will consider requests for corrections and additions to the instructions and to other matters you deem appropriate.1

Are there any objections or specific requests for corrections or additions to the instructions?

NOTE WELL: Consider all specific requests and if appropriate recall the jury and correct or add to the charge. If request(s) for corrections or additions are rejected, attorneys must be allowed to make specific objections on the record.

After all specific requests have been submitted and rejected and the proper notation(s) recorded, hand the verdict form(s) to the bailiff and instruct the bailiff to deliver [it] [them] to the jury without comment.

If necessary to return the jury to the courtroom for corrections or additions to the charge the judge should address the jury as follows:

Members of the jury, my attention has been properly directed to instructions necessary to [correct] [supplement] my previous instructions.

I charge you that . . . .

You may retire now and begin your deliberation when you receive the written verdict form(s).

NOTE WELL: Repeat to the lawyers the question regarding objections, corrections or additions. If there are further instructions upon specific requests, follow the same procedure as before; if not, instruct the bailiff to deliver the verdict form(s) to the jury.

NOTE WELL: If the jury requests additional instructions after retiring to deliberate, the trial judge should obtain the jury requests in writing, confer with the attorneys, and further instruct the jury if necessary.

S v. Privette, 317 N.C. 148 (1986) holds that it is within the trial court's discretion to determine whether instructions in addition to those requested should be given at the same time.

NOTE WELL: It is suggested that requests from the jury should be reduced to writing, marked as court exhibits, and made part of the record. In a capital case, the failure to share the jury's questions with the defendant denies the defendant the right to be present at every stage of the proceeding although the State may be able to prove the error was harmless beyond a reasonable doubt. State v. Smith, 654 S.E.2d 730 (N.C. Ct. App. 2008).

 

[gritguy]

N.C.P.I. Crim. 104.10. MOTIVE

Proof of motive for the crime is permissible and often valuable, but never essential for conviction. If you are convinced beyond a reasonable doubt that the defendant committed the crime, the presence or absence of motive is immaterial. Motive may be shown by facts surrounding the act if they support a reasonable inference of motive. When thus proved, motive becomes a circumstance to be considered by you. The absence of motive is equally a circumstance to be considered on the side of innocence.

 

[gritguy]

N.C.P.I. Crim. 101.15. CREDIBILITY OF WITNESS

You are the sole judges of the believability of (a) witness(es).

You must decide for yourselves whether to believe the testimony of any witness. You may believe all, any part, or none of a witness's testimony.

In deciding whether to believe a witness you should use the same tests of truthfulness that you use in your everyday lives. Among other things, these tests may include: the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified; the manner and appearance of the witness; any interest, bias, prejudice or partiality the witness may have; the apparent understanding and fairness of the witness; whether the testimony is reasonable; and whether the testimony is consistent with other believable evidence in the case.

 

[gritguy]

NC Professional Rule of Conduct 3.3

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

 

[gritguy]

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client, or participate in the application for the issuance of a search warrant to a lawyer for the seizure of information of a past or present client in connection with an investigation of someone other than the lawyer, unless:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

 

[AlwaysShocked]

If JY takes the stand once again (and I think he will) but this time it is a shorter appearance without him going into as much detail as he did in his prior testimony, is the Prosecution allowed to ask further questions about statements he made his testimony at the first trial?

For instance - If he would not go into the details of that car accident he claims to have been at involving head trauma, can Prosecutors bring that subject up and ask him further questions about the accident, when it happened, where it happened, exactly when he did the computer searches, etc?

How much latitude do they have to allow him to tell "all the details" of this incident and others like it?

 

[Wolfpack]

If JY takes the stand once again (and I think he will) but this time it is a shorter appearance without him going into as much detail as he did in his prior testimony, is the Prosecution allowed to ask further questions about statements he made his testimony at the first trial?

For instance - If he would not go into the details of that car accident he claims to have been at involving head trauma, can Prosecutors bring that subject up and ask him further questions about the accident, when it happened, where it happened, exactly when he did the computer searches, etc?

How much latitude do they have to allow him to tell "all the details" of this incident and others like it?

North Carolina has wide open cross. So, if he gets on the stand, and all he states is his name, the prosecution can still ask him about any topic they choose.

Now re-direct, and re-cross are limited to the subjects of cross/re-direct.

 

[JiminWilton]

Is the preparation of a quitclaim deed for the benefit of another person the practice of law. Some posters feel it is just filling in the blanks. So are most forms, as there are books of "Pleading and Practice Forms" available. To me, a General Warranty Deed is just filling the forms to, although we all agree that's practicing law.

If Jason prepared a quitclaim for his brother-in-law's separation agreement, did he practice law without a license?

Thanks.

PS: The q/c deed actually read "prepared by Jason Lynn Young"

 

[fifteen89]

gritguy - If Jason doesn't testify this time, I'm curious how you think that might appear to the jurors - since they heard his first-trial testimony played in this trial. Willing to testify in #1, not in #2.

 

[gritguy]

gritguy - If Jason doesn't testify this time, I'm curious how you think that might appear to the jurors - since they heard his first-trial testimony played in this trial. Willing to testify in #1, not in #2.

It is hard to say. That fact alone shouldn't count against him, by itself, since his story was there on screen.

I heard at the end of the day they expect to finish testimony tomorrow, so I suppose he isn't testifying unless he is first up.

In this situation, I think one opinion is as good as another. I'm looking forward to the close of the evidence and how both sides make their arguments over the story and picture the evidence does and doesn't present.

 

[gritguy]

Ok, here is some authority on the law regarding murder in NC, 1st and 2nd degree:

Pattern jury instruction guidance on the lesser included offense of 2nd degree murder:

"N.C.P.I. Crim. 206.00. FIRST DEGREE MURDER, PREMEDITATION AND DELIBERATION - SECOND DEGREE MURDER AS LESSER INCLUDED OFFENSE

State v. Strickland, 307 N.C. 274, at 289-91 (1983), in overruling State v. Harris, 290 N.C. 718 (1976), held that, when the indictment charges first degree murder by premeditation and deliberation, a trial judge is required to instruct on second degree murder only if the evidence tends to show a lack of premeditation and deliberation or would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater."

IMO, all sides would likely agree that either JY planned this murder or was not involved in it. I can't see why they would have a 2nd degree instruction in this case. Here's from a pattern jury instruction, coming after 1st degree and about to introduce 2nd degree:

"Second Degree Murder differs from first degree murder in that neither specific intent to kill, premeditation, nor deliberation is a necessary element."

Here's the pattern jury instruction for 1st degree murder with deadly weapon (they have one w/o too):

"For you to find the defendant guilty of first degree murder, the state must prove six things beyond a reasonable doubt:
First, that the defendant intentionally and with malice killed the victim with a deadly weapon.
Malice means not only hatred, ill will, or spite, as it is ordinarily understood, but it also means the condition of mind which prompts a person to intentionally take the life of another or to intentionally inflict serious bodily harm that proximately results in another person's death without just cause, excuse or justification. If the State proves beyond a reasonable doubt, (or it is admitted)5 that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the victim's death, you may infer first, that the killing was unlawful, and second, that it was done with malice, but you are not compelled to do so.6 You may consider this along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.
[A firearm is a deadly weapon.] [A deadly weapon is a weapon which is likely to cause death or serious injury. In determining whether the instrument involved was a deadly weapon, you should consider its nature, the manner in which it was used, and the size and strength of the defendant as compared to the victim.]
Second, the State must prove that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause, a cause without which the victim's death would not have occurred.7
Third, that the defendant intended to kill the victim. Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An intent to kill may be inferred from the nature of the assault, the manner in which the assault was made, the conduct of the parties and any other relevant circumstances.
Fourth, that the defendant acted with premeditation, that is, that the defendant formed the intent to kill the victim over some period of time, however short, before the defendant acted.
Fifth, that the defendant acted with deliberation, which means that the defendant acted while the defendant was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion. If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.
Neither premeditation nor deliberation is usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred, such as the [lack of provocation by the victim] [conduct of the defendant before, during and after the killing] [threats and declarations of the defendant] [use of grossly excessive force] [infliction of lethal wounds after the victim is felled] [brutal or vicious circumstances of the killing] [manner in which or means by which the killing was done]8 [ill will between the parties].9
And Sixth, that the defendant did not act in self-defense or that the defendant was the aggressor in provoking the fight with the intent to kill or inflict serious bodily harm upon the deceased."


The statute defining 1st degree and 2nd degree murder:

§ 14-17. Murder in the first and second degree defined; punishment

A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14-288.21, poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000, except that any such person who was under 18 years of age at the time of the murder shall be punished with imprisonment in the State's prison for life without parole. All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1)d., or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class B2 felon.

 

[Mama-cita]

1.
If there is a guilty verdict of some sort, will there be victim impact statements? Since the sentence is automatic for 1st degree would that verdict preclude VIS? And if, God forbid, 2nd degree, would the judge use them to weigh sentencing?
2.
If, God forbid, 2nd degree, what are the judges options with sentencing? Will the judge decide the sentence? If he is inclined to think the crime is so heinous what is the worst he can do?

 

[gritguy]

I agree with Wolfpack that the 1st degree verdict, should such come, probably means the judge will sentence without much further ado. However, he may choose to put his own narrative in when he sentences. I have heard some great ones. I'll check a bit to provide more details and edit shortly.

eta:

If there is a sentencing hearing, the judge can hear counsel, the defendant, and witnesses without formal rules of evidence. The judge could hear from the victim's family as well as the defendants. The judge has a presumptive range to sentence in for 2nd degree murder, something around 10-13 years minimum. The sentence can be increased or reduced based on a finding that the sentence should from the aggravated or mitigated range. The chart shows how much it can go in either direction.

For 1st degree, the sentence in this case is life. I guess the judge could let people talk if he wants to, but not sure that he would, given the sentence is known, plus he's running a tight schedule.

Here’s a link that explains structured sentencing:

http://www.nccourts.org/Courts/CRS/Councils/spac/Documents/citizenguide2010.pdf

Should the judge have a sentencing hearing, here is some statutory guidance on it:


§ 15A-1334. The sentencing hearing

(a) Time of Hearing. - Unless the defendant waives the hearing, the court must hold a hearing on the sentence. Either the defendant or the State may, upon a showing which the judge determines to be good cause, obtain a continuance of the sentencing hearing.
(b) Proceeding at Hearing. - The defendant at the hearing may make a statement in his own behalf. The defendant and prosecutor may present witnesses and arguments on facts relevant to the sentencing decision and may cross-examine the other party's witnesses. No person other than the defendant, his counsel, the prosecutor, and one making a presentence report may comment to the court on sentencing unless called as a witness by the defendant, the prosecutor, or the court. Formal rules of evidence do not apply at the hearing.

 

[Boodles]

Q: If by some chance JY is found guilty of 2nd degree murder, could there be grounds for appeal based upon the jury being offered the 2nd degree charge b/c it's "not applicable"?

 

[gritguy]

Q: If by some chance JY is found guilty of 2nd degree murder, could there be grounds for appeal based upon the jury being offered the 2nd degree charge b/c it's "not applicable"?

Possibly, but I don't think so. Before the current rule the old rule used to be that the judge HAD to include the instruction. Now, he doesn't have to if there is no evidence to support it. So, if he thinks there is some evidence that could and offers the choice, and the jury returns that verdict, I don't see the appeal basis. The jury would be saying yes he killed her, but he didn't plan it (or, we are sure he killed her, but we aren't sure he planned it). Since the alternative is he did plan it and the punishment is worse for that, I don't think there's anywhere to go with an appeal.