Here’s a question that comes up from time to time: May a search warrant issue for a residence in which an apparent suicide has taken place, in order to rule out the possibility of foul play? Generally, I don’t think so, for the reasons given below. Continue reading
Tag Archives: homicide
Suppose that a murder defendant goes by the street name “Hit Man.” The prosecution wants the investigating officer to testify that she received a tip that “Hit Man” committed the crime, and that she knew that the defendant used the nickname “Hit Man.” Defense counsel moves to prohibit all references to the nickname during the trial, arguing that it is de facto character evidence, which is generally prohibited under Rule 404(a), and that it is in any event far more prejudicial than probative and so barred under Rule 403. How should the judge rule?
Case law suggests that a brief reference to a defendant’s unflattering street name is permissible. However, the officer and the prosecutor should not unduly emphasize the nickname.
North Carolina cases. Our appellate courts have decided several nickname cases, and in every case, the courts have ruled in favor of the state:
- In State v. Bonnett, 348 N.C. 417 (1998), the court ruled that a witness’s references to defendant’s nickname, “Homicide,” were not prejudicial given that defense counsel and the defendant used the same term. In any event, the court stated, it is not error to refer to the defendant by the name by which he is generally known.
- In State v. Swift, 290 N.C. 383 (1976), the court said, “we do not believe it would have been error to refer to defendant by the name by which he was generally known [in this case, “Poison Ivy” or “Poison”]. The fact that his nickname may have been demeaning does not create error per se. Defendant had an opportunity to explain his nickname.”
- In State v. Riley, 159 N.C. App. 546 (2003), the court concluded that an officer’s reference to defendant’s nickname, “Dirty,” was not prejudicial in light of the overwhelming evidence of the defendant’s guilt and so was not plain error.
These cases don’t completely close the door to defense objections about nicknames. The nicknames in Swift and Riley, while unflattering, were not unambiguous references to criminal activity. The nickname at issue in Bonnett was much worse, but the defendant’s appeal was undermined by the fact that defense counsel and the defendant used the name themselves.
National cases. Although the vast majority of decisions nationally have rejected appeals based on references to defendants’ nicknames, a few cases have found the use of a defendant’s nickname to be so prejudicial as to require a new trial. The leading case is United States v. Farmer, 583 F.3d 131 (2d Cir. 2009), where the Second Circuit condemned the prosecution’s repeated references to the defendant’s nickname, “Murder.” The court distinguished other nickname cases in which no prejudicial error was found, noting that those cases generally involved less damning nicknames, fewer references to the nicknames, or limiting instructions regarding the nicknames. See also Taylor v. State, 23 A.2d 851 (Del. 2011) (awarding a new trial on other grounds to a murder defendant and recommending that “in the retrial, the court should make an effort to delete all references to [the defendant’s nickname, “Murder”] if possible”). But see Com. v. Williams, 58 A.3d 795 (Pa. Super. 2012) (no error in allowing prosecutor and prosecution witnesses to refer to the defendant by his nickname, “Killa”; prosecution “did not use [the] nickname to suggest [the defendant] had a violent character, but used it to show that the witnesses recognized [him] . . . even though the witnesses did not know [his] real name”); Burtts v. State, 499 S.E.2d 326 (Ga. 1998) (no error where witnesses identified the defendant as “Killer Corey” because they did not know his full name; “the use of a nickname does not place the character of an accused in issue”).
Practice pointers. The upshot for the prosecution is to exercise restraint. The more frequently a defendant’s nickname is used, the more closely it relates to criminal activity, and the more careful the defendant is to avoid using the nickname himself and to object when it is used by others, the more likely that the use of the nickname will be deemed improper. If a defendant’s nickname is likely to feature prominently in a trial, it would be wise to ask the judge to give a limiting instruction.
The defense should tread carefully, too. Sometimes the shoe is on the other foot and the defense wants to make the defendant’s nickname known to the jury. But that can carry unintended consequences, as in State v. Berry, 356 N.C. 490 (2002). In that case, a murder defendant elicited testimony that his nickname was “Crazy K,” “apparently in an attempt to tie the nickname to defendant’s purported lack of mental stability.” But that “gave the State the opportunity to establish the source of the nickname,” which was gang-related.
The murder rate in North Carolina is falling. The same is true nationally. A recent article suggests that shootings are actually up, but deaths are down due to medical advances. At least the first part of that claim is almost certainly wrong.
The chart below illustrates the decline in murders.
The article in question is this one, from the Wall Street Journal. It is entitled In Medical Triumph, Homicides Fall Despite Soaring Gun Violence. It argues that the fall in homicides cannot be due to falling overall crime rates because “[t]he reported number of people treated for gunshot attacks from 2001 to 2011 has grown by nearly half.”
Instead, the article concludes, the decline is due to improved medical care for gunshot victims, including “the spread of hospital trauma centers—which specialize in treating severe injuries—the increased use of helicopters to ferry patients, better training of first-responders and lessons gleaned from the battlefields of Iraq and Afghanistan.”
I seriously doubt the suggestion that there’s been a 50% increase in shootings since 2001. Aggravated assaults are way down, according to FBI data. The FBI’s Uniform Crime Reporting system defines an aggravated assault as an assault “for the purpose of inflicting severe or aggravated bodily injury . . . usually accompanied by the use of a weapon or by other means likely to produce death or great bodily harm.” Here’s what FBI data show about aggravated assaults.
The decline in aggravated assaults pretty closely tracks the decline in murders. It suggests that the reduction in violent conflicts explains the fall in homicides, and casts severe doubt on the idea that more people are getting shot.
Of course, it is theoretically possible that while there are fewer aggravated assaults overall, more of them involve gunplay. But the data that claim to show a rise in shootings don’t look very solid. The data come from the National Electronic Injury Surveillance System, run by the U.S. Consumer Product Safety Commission. That data is based on a “probability sample of hospitals in the U.S.,” so it is not comprehensive. And, the data are really intended to measure “injur[ies] associated with consumer products,” not criminal activity. This adds to my skepticism that shootings are up by 50%, or that medical care has advanced so rapidly that it can more than offset a 50% rise in shootings.
None of this is to say that medical care is not improving or that it has not contributed at all to falling murder rates. In fact, the most intriguing data cited by the article suggest a modest effect. The article cites data to the effect that “[i]n 2010, 13.96% of U.S. shooting victims died, almost two percentage points lower than in 2007.” Based on my back of the envelope calculations, a fall in fatality rate from 16% to 14% would almost exactly explain the observed decline in murders from 2007 to 2010 assuming a constant number of shootings. (It would be nowhere near enough to offset the supposed 50% increase in shootings.) For the reasons given above, I doubt that the number of shootings has been constant, so I suspect that even this modest effect is probably overstated.
Medical progress, probably. Medical triumph, I doubt.
Because of a case currently pending in Gaston County — story here — several people have asked me about the law as it concerns scaring a person to death. Let me start off with two caveats. First, this post is not a comment on the Gaston County case, about which I know nothing more than what I read in the newspaper, or on any pending case. It’s just a little black-letter law on an interesting subject. Second, I will readily admit to having no special knowledge about the scientific or medical aspects of scaring someone to death. However, it seems like it is possible to scare someone to death, as reflected in a Scientific American article available here.
With those caveats in mind, let’s look at the law. One can imagine a scenario where grandson, the only heir to grandma’s fortune, is desperate to get his hands on the money. Grandma won’t turn it loose, and is threatening to change her will to leave all the money to her cat, Truffles, so grandson decides to kill her. Knowing that she has a weak heart, he puts on a hockey mask, hides behind a houseplant, and when the grandma walks by, he leaps out and makes menacing noises. She’s terrified, has a heart attack, and dies. That’s first-degree murder under the theory of premeditation and deliberation.
North Carolina law also provides that a killing “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” is first-degree murder under the felony murder theory. G.S. 14-17. The killing need not be intentional. See, e.g., State v. Gibbs, 335 N.C. 1 (1993). So a defendant who puts on his hockey mask and jumps out from behind a streetlight with the intention of robbing a passer-by has committed first-degree felony murder if the victim is so terrified that he dies.
The felony murder doctrine applies even if the killing need not be a part of the commission of the underlying felony, so long as there is “an unbroken chain of events leading from the attempted felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction.” State v. Coleman, 161 N.C. App. 224 (2003) (internal quotation marks and citations omitted). A defendant’s attempt to escape apprehension for a crime is normally part of such a continuous transaction, so a killing committed during an attempt to escape normally falls within the felony murder rule. See, e.g., State v. Doyle, 161 N.C. App. 247 (2003). It sounds like that’s the basis of the charge in the Gaston County case, where the defendant, while trying to escape apprehension for a failed bank robbery, apparently broke into a house, which the state contends scared the elderly woman who lived there so much that she had a heart attack.
One can imagine scenarios where scaring someone to death results in other degrees of homicide, too. For example, a nursing home employee who, as a prank, not intending any harm, dresses in a terrifying costume and scares a resident to death might arguably exhibit the sort of extreme recklessness than can support a second-degree murder charge. Folks who can think of good scenarios for other degrees of homicide, feel free to post them in the comments section — it can be a sort of a macabre contest.
All interesting stuff, and of course, while it’s a hot issue in North Carolina right now, it isn’t limited to North Carolina. According to an article available here, there are at least a couple of cases elsewhere in which first-degree murder convictions have been based on a defendant’s scaring a victim to death. I imagine that these cases tend to involve a lot of expert testimony about the cause of death, with the state trying to prove that the heart attack was caused by the defendant’s conduct and the defense arguing that the victim was just in poor health and set to expire, regardless.