State v. Ellison.
Question Presented: Does the opium trafficking statute apply to tablets and pills, basing the punishment on total weight? N.C.G.A. 90-95(h)(4)? Answer, yes (even though it has disparate effect of harshly punishing relatively small quantities of pharmaceutical pill transfers--for example, one bottle of opiate pharmaceuticals gets the punishment of 225 months).
Justice Hudson concurs, but notes concern that persons may be prosecuted whose activities are beyond the intended reach of the legislation.
State v. Khan.
Reversing COA decision. Found that defendant unambiguously agreed to aggravating factors and was properly sentenced in the aggravated range.
COA had found the plea transcript ambiguous on the aggravating factors, as it listed only one of the case numbers at the top, even though both charges were listed in the body. The SC said that this was a silly distinction and the defendant admitted aggravating factors in both cases, as the plea dealt with both cases.
Wednesday, April 3, 2013
Court of Appeals Criminal Decisions, February 19, 2013
State v. Chisholm. Mecklenburg County.
Search warrant on defendant's house found 13 g of cocaine, 28 g of white substance not drugs, scales, baggies and money.
Sufficient evidence of possession with intent to sell controlled substance and sufficient evidence of possession with intent to sell cocaine. Intent: There were scales, bags and money, sufficient to show intent. Constructive Possession: defendant found sleeping in the bed in the bedroom where the drugs were found and his clothes and personal affects were there too.
State v. Dorman. Durham County.
This is the case where that guy got found with the victim's bones and the state destroyed the body. The one where Tracey Cline said that the body was destroyed pursuant to ME policy, then it turned out that the detective on the case authorized the destruction, even though there was a court order not to destroy evidence. Judge Hudson dismissed the case due to discovery violations (didn't release the victim compensation file that showed the release was authorized by the detective) and destruction of evidence (victim compensation, an group within the DA's office, arranged to have the bones cremated at the family's request) and committed Dorman, as he was clearly unhinged.
First, court erred in finding that the destruction of human remains resulted in a flagrant violation of Brady. For such violation, must show the evidence was suppressed, was favorable to defense, and material to trial. Here, the "favorable" portion was speculative. As the bones are gone, the defense can only speculate that they would have been helpful. Even though the state may have acted in bad faith, there is no evidence that the destruction of the evidence irreparably prejudiced the defendant. Further, the court could have fashioned other relief that could have been helpful.
In short, as we all know, the courts have eviscerated the destruction of evidence claim and it is nearly impossible to get relief under it.
Second, the failure of the state to correct material misrepresentation was not a Napue claim. That has to do with testimony to juries, not to courts in pretrial matters.
State v. Thomas. Mecklenburg County.
Satellite-based monitoring case. Defendant convicted for indecent liberties. Defendant was not a recidivist and this wasn't an aggravated offense. The risk assessment by DOC showed low risk of reoffending. The court found that the victim was traumatized and the defendant took advantage of a position of authority and ordered SBM (finding that the "highest level of monitoring" was appropriate).
Held: These additional findings were not supported by the evidence. Remanded for resentencing.
State v. Williams.Wake County.
Appeal of motion to suppress in a DWI stop.
Sufficient probable cause to arrest where defendant was found lying, intoxicated, next to a single car accident and drunkenly spit in the cops face as they approached him.
Search warrant on defendant's house found 13 g of cocaine, 28 g of white substance not drugs, scales, baggies and money.
Sufficient evidence of possession with intent to sell controlled substance and sufficient evidence of possession with intent to sell cocaine. Intent: There were scales, bags and money, sufficient to show intent. Constructive Possession: defendant found sleeping in the bed in the bedroom where the drugs were found and his clothes and personal affects were there too.
State v. Dorman. Durham County.
This is the case where that guy got found with the victim's bones and the state destroyed the body. The one where Tracey Cline said that the body was destroyed pursuant to ME policy, then it turned out that the detective on the case authorized the destruction, even though there was a court order not to destroy evidence. Judge Hudson dismissed the case due to discovery violations (didn't release the victim compensation file that showed the release was authorized by the detective) and destruction of evidence (victim compensation, an group within the DA's office, arranged to have the bones cremated at the family's request) and committed Dorman, as he was clearly unhinged.
First, court erred in finding that the destruction of human remains resulted in a flagrant violation of Brady. For such violation, must show the evidence was suppressed, was favorable to defense, and material to trial. Here, the "favorable" portion was speculative. As the bones are gone, the defense can only speculate that they would have been helpful. Even though the state may have acted in bad faith, there is no evidence that the destruction of the evidence irreparably prejudiced the defendant. Further, the court could have fashioned other relief that could have been helpful.
In short, as we all know, the courts have eviscerated the destruction of evidence claim and it is nearly impossible to get relief under it.
Second, the failure of the state to correct material misrepresentation was not a Napue claim. That has to do with testimony to juries, not to courts in pretrial matters.
State v. Thomas. Mecklenburg County.
Satellite-based monitoring case. Defendant convicted for indecent liberties. Defendant was not a recidivist and this wasn't an aggravated offense. The risk assessment by DOC showed low risk of reoffending. The court found that the victim was traumatized and the defendant took advantage of a position of authority and ordered SBM (finding that the "highest level of monitoring" was appropriate).
Held: These additional findings were not supported by the evidence. Remanded for resentencing.
State v. Williams.Wake County.
Appeal of motion to suppress in a DWI stop.
Sufficient probable cause to arrest where defendant was found lying, intoxicated, next to a single car accident and drunkenly spit in the cops face as they approached him.
Thursday, March 21, 2013
Court of Appeals Criminal Decisions, Feb. 5, 2013
State v. Banks. Appeal of denial of motion for appropriate relief.
Defendant was convicted in 2007 for statutory rape and second degree rape and sentenced to 240 months plus 73 months.
In Sept. 2011, Defendant filed an MAR alleging ineffective assistance failing to challenge the convictions on double jeopardy-like grounds. This was dismissed by the judge, who found that the defendant was convicted of "separate and distinct crimes."
Held: it was IAC to fail to object to conviction for statutory rape and second degree rape for a single act of sexual intercourse. While this did not violate double jeopardy, the court found the legislature did not intend for individuals to be convicted of both.
State v. Boone. Appeal of probation revocation.
Defendant on probation with 120 days suspended for DWI. Defendant was ordered to do 48 hours of community service and pay $1,385 in costs, fines and fees, plus a probation fee.
A violation report was filed for willful failure to complete community service and being in arrears, six months into the 12 month probation.
Held: State failed to show willful violation. No evidence presented of a payment plan or schedule for community service that defendant did not follow, and there was still 6 months on his original term.
State v. Crawford. Appeal of sentence.
Defendant did not meet burden at trial of showing that federal felonies of impersonating an officer and making false statement to the FBI were substantially similar to misdemeanors under NC Law. The presumption is federal felonies are treated as prior felonies under NC law and the burden lies with the defense to prove otherwise.
Further, NC law's false statement misdemeanor has no requirement of materiality, like the federal statute.
State v. Gray. Appeal of robbery with a dangerous weapon conviction.
Defendant objected to trial counsel's representation because his counsel had previously represented one of the state's witnesses.
Defendant has right to conflict-free counsel. To obtain relief, must show the conflict "adversely affected his counsel's performance." Defendant's prejudice is presumed here where defendant did not waive and the attorney acknowledged possessing confidential information relevant to cross of a state's witness/former client.
New trial.
State v. Johnson. Appeal of denial of motion to suppress.
Defendant on I-95 when stopped for "following too closely" and holding up a cell phone (texting while driving). After the stop, defendant was taken out of the car and frisked for weapons. The officer felt a blunt object in his pants. While in car, the office smelled Marijuana, told the defendant this and was given permission to search. Found a scale. A k-9 came and smelled odor. The officer looked inside defendant's underwear and found two mall packages. Defendant fought his way free and fled, and was caught and charged with trafficking cocaine. He was later sentenced to 22 years.
The smell of marijuana and the scale found on defendant's person gave probable cause and exigent circumstances to conduct the warrantless strip search of the defendant.
State v. Lovette. Appeal of first degree murder, kidnapping, and robbery (this is the juvenile who was sentenced to LWOP in the Chapel Hill murder of Eve Carson).
No fatal defect in robbery indictment. The indictment left blank the person who had been robbed, but indicated the robbery was completed by means of threatening Eve Carson. This was sufficient notice for an effective indictment.
No error in allowing state to ask, on voir dire, if jurors could "consider testimony" of snitches.
Defendant's challenges for cause of 2 jurors not preserved because they were not renewed when he ran out of strikes. No error in denying challenge for cause of third juror who indicated he had problems hearing, but judge found that he could hear well enough to participate.
Found that counsel did not concede guilt in closing.
Held that case should be remanded for new resentencing under Miller. Lovette was under 18 when he received a mandatory LWOP sentence. The U.S. Supreme Court has held that mandatory LWOP for juveniles is cruel and unusual punishment.
Resentencing to be held on whether or not defendant should have the opportunity for parole.
State v. Smith. Appeal of RDO and indecent exposure.
Defendant was observed masturbating in his car in a Roses parking lot. Police were called and defendant was pulled leaving the lot. Defendant had his shorts down and genitals exposed. During the arrest, defendant didn't comply with orders and, at one point, tried to "turn in a circle" and began "defecating on the ground."
No plain error in instruction, as part of RDO, that the officer was performing the duty of "lawful arrest for indecent exposure." No error not to instruct on the lawfulness of the arrest, if no evidence supports such an instruction.
Sufficient evidence of RDO, even though defendant says he was only trying to get is pants up.
No error in not granting mistrial, where an officer stated that defendant was a registered sex offender, in response to counsel's question "“when you were on the scene with Mr. Smith, did he ever say he had any kind of medical problems that you heard or explain to you why he was—" Trial court opined that defendant may have opened the door by asking and not filing any in limine motions on the matter. Sustained and moved to strike granted, but no mistrial. The impermissible evidence was cured by proper instruction.
State v. Stokes. Appeal of firearm by felon, kidnapping, AWDWIK, and RWDW.
Defendant robbed a convenience store, firing beside the clerk's head, then told the clerk to get in the car. Clerk walked out of the store, but then refused to get in the car, and the defendant left.
First. sufficient evidence of AWDWIK. Even though defendant shot beside the clerk's head, court found sufficient evidence of intent to kill, since the clerk said, "I thought he was going to kill me right then." "From the evidence, it may be reasonably inferred that defendant intended to kill the clerk when he fired a gun right beside his head." (Apparently, the court of appeals feels that the defendant is just a very bad shot).
Second, insufficient evidence of removal for 2nd degree kidnapping. Moving the victim just a few feet and not into any more dangerous area is not sufficient for removal under the kidnapping statute.
State v. Wilkins. Appeal of possession of firearm by felon.
Held: Indictment was defective, because it was included in a single indictment also charging assault with a deadly weapon. 14-415.1(c) reads "The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section." Because it was not a separate indictment, it is defective.
State v. Wilson. Appeal of motion to suppress identification, under the Identification Reform At, NCGS 15A-284.52.
Challenges the picture ID because defendant's photo was smaller, no effort was taken to make sure it resembled the defendant, or that the other pictures fit the eye-witness descriptions.
A smaller picture doesn't violate due process by being overly suggestive.
The statutory violation doesn't matter, as trial court has discretion in considering violations of the statute.
Defendant was convicted in 2007 for statutory rape and second degree rape and sentenced to 240 months plus 73 months.
In Sept. 2011, Defendant filed an MAR alleging ineffective assistance failing to challenge the convictions on double jeopardy-like grounds. This was dismissed by the judge, who found that the defendant was convicted of "separate and distinct crimes."
Held: it was IAC to fail to object to conviction for statutory rape and second degree rape for a single act of sexual intercourse. While this did not violate double jeopardy, the court found the legislature did not intend for individuals to be convicted of both.
State v. Boone. Appeal of probation revocation.
Defendant on probation with 120 days suspended for DWI. Defendant was ordered to do 48 hours of community service and pay $1,385 in costs, fines and fees, plus a probation fee.
A violation report was filed for willful failure to complete community service and being in arrears, six months into the 12 month probation.
Held: State failed to show willful violation. No evidence presented of a payment plan or schedule for community service that defendant did not follow, and there was still 6 months on his original term.
State v. Crawford. Appeal of sentence.
Defendant did not meet burden at trial of showing that federal felonies of impersonating an officer and making false statement to the FBI were substantially similar to misdemeanors under NC Law. The presumption is federal felonies are treated as prior felonies under NC law and the burden lies with the defense to prove otherwise.
Further, NC law's false statement misdemeanor has no requirement of materiality, like the federal statute.
State v. Gray. Appeal of robbery with a dangerous weapon conviction.
Defendant objected to trial counsel's representation because his counsel had previously represented one of the state's witnesses.
Defendant has right to conflict-free counsel. To obtain relief, must show the conflict "adversely affected his counsel's performance." Defendant's prejudice is presumed here where defendant did not waive and the attorney acknowledged possessing confidential information relevant to cross of a state's witness/former client.
New trial.
State v. Johnson. Appeal of denial of motion to suppress.
Defendant on I-95 when stopped for "following too closely" and holding up a cell phone (texting while driving). After the stop, defendant was taken out of the car and frisked for weapons. The officer felt a blunt object in his pants. While in car, the office smelled Marijuana, told the defendant this and was given permission to search. Found a scale. A k-9 came and smelled odor. The officer looked inside defendant's underwear and found two mall packages. Defendant fought his way free and fled, and was caught and charged with trafficking cocaine. He was later sentenced to 22 years.
The smell of marijuana and the scale found on defendant's person gave probable cause and exigent circumstances to conduct the warrantless strip search of the defendant.
State v. Lovette. Appeal of first degree murder, kidnapping, and robbery (this is the juvenile who was sentenced to LWOP in the Chapel Hill murder of Eve Carson).
No fatal defect in robbery indictment. The indictment left blank the person who had been robbed, but indicated the robbery was completed by means of threatening Eve Carson. This was sufficient notice for an effective indictment.
No error in allowing state to ask, on voir dire, if jurors could "consider testimony" of snitches.
Defendant's challenges for cause of 2 jurors not preserved because they were not renewed when he ran out of strikes. No error in denying challenge for cause of third juror who indicated he had problems hearing, but judge found that he could hear well enough to participate.
Found that counsel did not concede guilt in closing.
Held that case should be remanded for new resentencing under Miller. Lovette was under 18 when he received a mandatory LWOP sentence. The U.S. Supreme Court has held that mandatory LWOP for juveniles is cruel and unusual punishment.
Resentencing to be held on whether or not defendant should have the opportunity for parole.
State v. Smith. Appeal of RDO and indecent exposure.
Defendant was observed masturbating in his car in a Roses parking lot. Police were called and defendant was pulled leaving the lot. Defendant had his shorts down and genitals exposed. During the arrest, defendant didn't comply with orders and, at one point, tried to "turn in a circle" and began "defecating on the ground."
No plain error in instruction, as part of RDO, that the officer was performing the duty of "lawful arrest for indecent exposure." No error not to instruct on the lawfulness of the arrest, if no evidence supports such an instruction.
Sufficient evidence of RDO, even though defendant says he was only trying to get is pants up.
No error in not granting mistrial, where an officer stated that defendant was a registered sex offender, in response to counsel's question "“when you were on the scene with Mr. Smith, did he ever say he had any kind of medical problems that you heard or explain to you why he was—" Trial court opined that defendant may have opened the door by asking and not filing any in limine motions on the matter. Sustained and moved to strike granted, but no mistrial. The impermissible evidence was cured by proper instruction.
State v. Stokes. Appeal of firearm by felon, kidnapping, AWDWIK, and RWDW.
Defendant robbed a convenience store, firing beside the clerk's head, then told the clerk to get in the car. Clerk walked out of the store, but then refused to get in the car, and the defendant left.
First. sufficient evidence of AWDWIK. Even though defendant shot beside the clerk's head, court found sufficient evidence of intent to kill, since the clerk said, "I thought he was going to kill me right then." "From the evidence, it may be reasonably inferred that defendant intended to kill the clerk when he fired a gun right beside his head." (Apparently, the court of appeals feels that the defendant is just a very bad shot).
Second, insufficient evidence of removal for 2nd degree kidnapping. Moving the victim just a few feet and not into any more dangerous area is not sufficient for removal under the kidnapping statute.
State v. Wilkins. Appeal of possession of firearm by felon.
Held: Indictment was defective, because it was included in a single indictment also charging assault with a deadly weapon. 14-415.1(c) reads "The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section." Because it was not a separate indictment, it is defective.
State v. Wilson. Appeal of motion to suppress identification, under the Identification Reform At, NCGS 15A-284.52.
Challenges the picture ID because defendant's photo was smaller, no effort was taken to make sure it resembled the defendant, or that the other pictures fit the eye-witness descriptions.
A smaller picture doesn't violate due process by being overly suggestive.
The statutory violation doesn't matter, as trial court has discretion in considering violations of the statute.
Friday, February 1, 2013
NC Supreme Court Criminal Decisions, Jan. 25, 2013
State v. Carver. Per curiam affirmed.
Here's what I wrote about the COA decision:
State v. Carver. Gaston County. 1st Degree Murder. LWOP.
Victim found dead beside her car on the shore of the Catawba River. Defendant and his cousin were fishing close-by at the time the victim was discovered and near the time she was strangled to death. DNA in the car matched Carver and his cousin's profile. Carver denied ever touching the car. Defendant found guilty of 1st degree murder. Defendant described the victim as a "little thing," even though he maintained he'd never seen her.
First, this was sufficient evidence.
Second, during deliberations, the jury asked, "Are we still to consider acting in concert?" They were not instructed on this. Instead of saying "no," the court, without objection, just re-read the instructions. This was not error and not preserved.
Hunter dissents, saying there was not sufficient evidence. Cannot reasonably infer guilt from the circumstantial evidence of touch DNA, which is less reliable, on the outside of the car. His cousin's touch DNA was found inside the car. Wasn't found on any ligatures.
Here's what I wrote about the COA decision:
State v. Carver. Gaston County. 1st Degree Murder. LWOP.
Victim found dead beside her car on the shore of the Catawba River. Defendant and his cousin were fishing close-by at the time the victim was discovered and near the time she was strangled to death. DNA in the car matched Carver and his cousin's profile. Carver denied ever touching the car. Defendant found guilty of 1st degree murder. Defendant described the victim as a "little thing," even though he maintained he'd never seen her.
First, this was sufficient evidence.
Second, during deliberations, the jury asked, "Are we still to consider acting in concert?" They were not instructed on this. Instead of saying "no," the court, without objection, just re-read the instructions. This was not error and not preserved.
Hunter dissents, saying there was not sufficient evidence. Cannot reasonably infer guilt from the circumstantial evidence of touch DNA, which is less reliable, on the outside of the car. His cousin's touch DNA was found inside the car. Wasn't found on any ligatures.
Wednesday, January 23, 2013
NC Criminal Decision, Jan. 15, 2013
State v. Broom. Alamance County. Appeal of first degree murder, kidnapping, and AWDWIKISI convictions.
Defendant shot his pregnant wife in the stomach, after she refused to have an abortion. The doctors forced delivery and the child lived on a ventilator for 4 days, then breathed on her own for awhile, but eventually died of "necrotizing enterocolitis."
First, defendant argues not guilty of 1st degree murder based on premeditation and deliberation. He argues could not have P&D'd to kill the child, as the child hadn't even been born when she was shot. Further argues that the gunshot was not the proximate cause. While killing a viable unborn fetus cannot be a basis under 14-17, that is inapposite to this case because the child was actually born and lived. The court held there was substantial evidence to show that his actions caused the injuries prior to birth that killed the child, once born. That was sufficient evidence of foreseeability for proximate cause analysis.
Second, shooting his wife in the stomach was sufficient evidence of intent to kill for the AWDWIKISI.
Third, no error in denying defendant request for instructions that the court would give on fetal life before conducting jury selection. Judge wouldn't allow the defendant to question jurors on issues of when life begins or abortions. No abuse of discretion or prejudice.
Fourth, no error in failing to instruct on second-degree murder. Defendant's defense at trial was that victim shot herself. No evidence presented negating intent, thus no error.
State. Claxton. Mecklenburg County. Appeal of prior record level calculation.
Challenges finding that out-of-state convictions were substantially similar to NC crimes.
First, the NY DCI was sufficient evidence of the out of state conviction, even though it had slight differences from the NC DCI (different dispo dates for one offense and inclusion of wrong middle initials in one).
Second, defendant argues that "3rd degree drug sale" and "5th degree drug sale" convictions were substantially similar to NC sale statutes that are class G felonies. Court reviewed the statutes and found them substantially similar, even though the drug schedules set out were not identical.
State v. Gardner. Iredell County. Appeal of prior record level calculation.
Defendant appeals calculation of prior record level. Despite her stipulation to the prior record, this did not stipulate to the record level calculation from this record, which was completed by the court.
The court wrongfully gave her an extra point for prior conviction of flee/elude arrest. While she was convicted of that, it was consolidated for sentencing with AWDW on a government official, a higher offense. Because of this, she should not have gotten the extra point.
Remanded for resentencing.
State v. Garrison. Durham County. Appeal of habitual misdemeanor assault convictions.
Defendant argues plain error in court failing to instruct that the jury had to find that the assaults resulted in injury.
For a misdemeanor assault to serve as a basis for habitual misdemeanor assault, there must be a physical injury. For assault on a female, there is no requirement of proof of injury.
Judge did not instruct the jury that they had to find the underlying assaults to have caused injury. Such error was harmless, as there was overwhelming evidence that the assaults resulted in injury (broken rib).
State v. Hoskins. Mecklenburg County. Appeal of habitual felony conviction for failure to register as sex offender.
State, during sentencing, put on evidence of a 1972 and a 1978 felony conviction. During the trial, they put on evidence of a 1987 felony conviction. Defendant challenges, saying that the state only proved 2 conviction. However, Court held that the state could rely on the 3rd conviction that was proven during the underlying offense trial phase.
State v. Jones. Johnston County. Appeal of probation violation revocation.
Defendant revoked for failure to complete community service, keep curfew and pay moneys. Court revoked under the Justice Reinvestment Act, finding two prior 90 day revocations.
Under JRA, a person can only be revoked if they: (1) abscond; (2) get convicted of other offenses; or (3) have 2 prior 90 day revocation.
This finding was not supported by the evidence. However, this appears to be a clerical error. Rather, he was revoked for conviction of other criminal offense, which was part of a prior violation report.
State v. Lanford. Cumberland County. Appeal of felony child abuse, assault with a deadly weapon, sex offense, indecent liberties, strangulation, and malicious castration.
First, sufficient evidence for malicious castration. Elements are permanent injury to the "privy member", done with malice and the specific intent to maim or disfigure the privy member. Here, there was a 2 1/2 cut on the child's member. Defendant challenges proof of intent
Victim at trial said the injury occurred by a kick, but previously told police it done with a knife. Under either set of facts, a jury could have found intent.
State v. McKenzie. Duplin County. Appeal of Superior Court order reversing dismissal of DWI.
Issue: was defendant subject to double jeopardy due to civil revocation of his CDL?
Held: The prior one-year CDL revocation under 20-17.4(a)(7) was a prior criminal punishment. Subsequent DWI prosecution was barred by double jeopardy. While 10 day and 30 day revocations are civil remedies, the 1 year revocation was a criminal punishment.
Hunter dissents.
State v. Sanders. Beaufort County. Appeal of calculation of record level using out of state assaults.
On the computer printout of history, defendant had two out-of-state convictions for "theft of property" and "domestic assault." The judge determined these were similar to class 1/A1 offenses in NC and gave him points for these two convictions.
To make this determination, the trial court must compare the elements of each offense and find it substantially similar to a class 1 or A1 NC misdemeanor offense. The relevant statutes were not provided or reviewed by the judge. Rather, the court simply compared the punishments offered in Tennessee for the offenses. This was inappropriate.
Remanded for a proper comparison of the elements of the crime with NC offenses.
State v. Wilkes. Moore County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), child abuse, and AWDWISI.
First, sufficient evidence of intent to kill where defendant hit female victim in the head multiple times with a baseball bat, continuing to hit her after she fell to her knees.
Second, no error in convicting on both assaults. Here, defendant was interrupted while beating the victim, went to beat the child, then came back to hit her more. This was a separate assault in that it was distinct in time, caused injuries to different parts of her body, and was the result of separated thought processes.
Hunter dissents and says this was one continuous assault.
State v. Wilson. Forsyth County. Appeal of DWI.
Superior Court suppressed evidence of illegal blood draw and dismissed the case for constitutional violations. The state appeals.
Although the court could have suppressed the evidence, it was improper to dismiss the charge.
Under 15A-954, the court must dismiss if: "The defendant's constitutional rights have been flagrantly
violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution."
While a constitutional violation did occur (leading to suppression of the blood evidence), defendant cannot show he was irreparably prejudiced.
Defendant shot his pregnant wife in the stomach, after she refused to have an abortion. The doctors forced delivery and the child lived on a ventilator for 4 days, then breathed on her own for awhile, but eventually died of "necrotizing enterocolitis."
First, defendant argues not guilty of 1st degree murder based on premeditation and deliberation. He argues could not have P&D'd to kill the child, as the child hadn't even been born when she was shot. Further argues that the gunshot was not the proximate cause. While killing a viable unborn fetus cannot be a basis under 14-17, that is inapposite to this case because the child was actually born and lived. The court held there was substantial evidence to show that his actions caused the injuries prior to birth that killed the child, once born. That was sufficient evidence of foreseeability for proximate cause analysis.
Second, shooting his wife in the stomach was sufficient evidence of intent to kill for the AWDWIKISI.
Third, no error in denying defendant request for instructions that the court would give on fetal life before conducting jury selection. Judge wouldn't allow the defendant to question jurors on issues of when life begins or abortions. No abuse of discretion or prejudice.
Fourth, no error in failing to instruct on second-degree murder. Defendant's defense at trial was that victim shot herself. No evidence presented negating intent, thus no error.
State. Claxton. Mecklenburg County. Appeal of prior record level calculation.
Challenges finding that out-of-state convictions were substantially similar to NC crimes.
First, the NY DCI was sufficient evidence of the out of state conviction, even though it had slight differences from the NC DCI (different dispo dates for one offense and inclusion of wrong middle initials in one).
Second, defendant argues that "3rd degree drug sale" and "5th degree drug sale" convictions were substantially similar to NC sale statutes that are class G felonies. Court reviewed the statutes and found them substantially similar, even though the drug schedules set out were not identical.
State v. Gardner. Iredell County. Appeal of prior record level calculation.
Defendant appeals calculation of prior record level. Despite her stipulation to the prior record, this did not stipulate to the record level calculation from this record, which was completed by the court.
The court wrongfully gave her an extra point for prior conviction of flee/elude arrest. While she was convicted of that, it was consolidated for sentencing with AWDW on a government official, a higher offense. Because of this, she should not have gotten the extra point.
Remanded for resentencing.
State v. Garrison. Durham County. Appeal of habitual misdemeanor assault convictions.
Defendant argues plain error in court failing to instruct that the jury had to find that the assaults resulted in injury.
For a misdemeanor assault to serve as a basis for habitual misdemeanor assault, there must be a physical injury. For assault on a female, there is no requirement of proof of injury.
Judge did not instruct the jury that they had to find the underlying assaults to have caused injury. Such error was harmless, as there was overwhelming evidence that the assaults resulted in injury (broken rib).
State v. Hoskins. Mecklenburg County. Appeal of habitual felony conviction for failure to register as sex offender.
State, during sentencing, put on evidence of a 1972 and a 1978 felony conviction. During the trial, they put on evidence of a 1987 felony conviction. Defendant challenges, saying that the state only proved 2 conviction. However, Court held that the state could rely on the 3rd conviction that was proven during the underlying offense trial phase.
State v. Jones. Johnston County. Appeal of probation violation revocation.
Defendant revoked for failure to complete community service, keep curfew and pay moneys. Court revoked under the Justice Reinvestment Act, finding two prior 90 day revocations.
Under JRA, a person can only be revoked if they: (1) abscond; (2) get convicted of other offenses; or (3) have 2 prior 90 day revocation.
This finding was not supported by the evidence. However, this appears to be a clerical error. Rather, he was revoked for conviction of other criminal offense, which was part of a prior violation report.
State v. Lanford. Cumberland County. Appeal of felony child abuse, assault with a deadly weapon, sex offense, indecent liberties, strangulation, and malicious castration.
First, sufficient evidence for malicious castration. Elements are permanent injury to the "privy member", done with malice and the specific intent to maim or disfigure the privy member. Here, there was a 2 1/2 cut on the child's member. Defendant challenges proof of intent
Victim at trial said the injury occurred by a kick, but previously told police it done with a knife. Under either set of facts, a jury could have found intent.
State v. McKenzie. Duplin County. Appeal of Superior Court order reversing dismissal of DWI.
Issue: was defendant subject to double jeopardy due to civil revocation of his CDL?
Held: The prior one-year CDL revocation under 20-17.4(a)(7) was a prior criminal punishment. Subsequent DWI prosecution was barred by double jeopardy. While 10 day and 30 day revocations are civil remedies, the 1 year revocation was a criminal punishment.
Hunter dissents.
State v. Sanders. Beaufort County. Appeal of calculation of record level using out of state assaults.
On the computer printout of history, defendant had two out-of-state convictions for "theft of property" and "domestic assault." The judge determined these were similar to class 1/A1 offenses in NC and gave him points for these two convictions.
To make this determination, the trial court must compare the elements of each offense and find it substantially similar to a class 1 or A1 NC misdemeanor offense. The relevant statutes were not provided or reviewed by the judge. Rather, the court simply compared the punishments offered in Tennessee for the offenses. This was inappropriate.
Remanded for a proper comparison of the elements of the crime with NC offenses.
State v. Wilkes. Moore County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), child abuse, and AWDWISI.
First, sufficient evidence of intent to kill where defendant hit female victim in the head multiple times with a baseball bat, continuing to hit her after she fell to her knees.
Second, no error in convicting on both assaults. Here, defendant was interrupted while beating the victim, went to beat the child, then came back to hit her more. This was a separate assault in that it was distinct in time, caused injuries to different parts of her body, and was the result of separated thought processes.
Hunter dissents and says this was one continuous assault.
State v. Wilson. Forsyth County. Appeal of DWI.
Superior Court suppressed evidence of illegal blood draw and dismissed the case for constitutional violations. The state appeals.
Although the court could have suppressed the evidence, it was improper to dismiss the charge.
Under 15A-954, the court must dismiss if: "The defendant's constitutional rights have been flagrantly
violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution."
While a constitutional violation did occur (leading to suppression of the blood evidence), defendant cannot show he was irreparably prejudiced.
Tuesday, January 15, 2013
NC Court of Appeals Criminal Decisions, Dec. 31, 2012
Interesting Cases
State v. Daniels. Dare County.
Judge Wayland J. Sermons, Jr. ruled that 14-208.18(a)(2) and (a)(3) are unconstitutionally vague and overbroad. These provide that a sex offender cannot be:
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.
Third, section (a)(3) of the statute is unconstitutionally vague, as it fails to give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited.
State v. Grainger. Randolph County. Appeal of 1st degree murder conviction.
Held: Court erred in failing to instruct on the lessor offense of accessory before the fact to first degree murder. This is a lesser offense because it is only punishable as a B2, in murder cases--even if the case is not tried capitally (language in the statute is "capital felony").
Facts in the case were simply that defendant dropped off the shooter to kill his father.
Other Cases
State v. Comeaux. Buncombe County. Appeal of four counts of indecent liberties.
1st, defendant challenges victim testifying in closed courtroom under 6th Amendment right to a public trial.
A judge may close the courtroom in sex offense cases during the victim's testimony by following the requirements of State v. Waller, that:
(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) the trial court must make findings adequate to support the closure.
Here, the court made adequate findings to close the court.
2nd, indictments were not defective, even though they did not give a specific date for a specific sexual act.
State v. Oates. State appeal of court grant of motion to suppress.
The trial court found that the affidavit that was used to get a search warrant was insufficient to establish probable cause.
State v. Daniels. Dare County.
Judge Wayland J. Sermons, Jr. ruled that 14-208.18(a)(2) and (a)(3) are unconstitutionally vague and overbroad. These provide that a sex offender cannot be:
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.
(3) At any place where minors gather for regularly
scheduled educational, recreational, or social programs.
Defendant
went with his wife and son to his son's Tee Ball game at the Lion's
Club Center, which is used for community events and then another Park,
to practice softball with his daughter. A cop saw him and had him
arrested. Judge Sermon dismissed the charges, declaring the law vague.
The State appealed.
First, the court had no jurisdiction to rule (2) to be vague, as defendant was indicted on (3).
Second, defendant did not have standing to bring a facial challenge, only an as-applied challenge.
intelligence a reasonable opportunity to know what is prohibited.
State v. Grainger. Randolph County. Appeal of 1st degree murder conviction.
Held: Court erred in failing to instruct on the lessor offense of accessory before the fact to first degree murder. This is a lesser offense because it is only punishable as a B2, in murder cases--even if the case is not tried capitally (language in the statute is "capital felony").
Facts in the case were simply that defendant dropped off the shooter to kill his father.
Other Cases
State v. Comeaux. Buncombe County. Appeal of four counts of indecent liberties.
1st, defendant challenges victim testifying in closed courtroom under 6th Amendment right to a public trial.
A judge may close the courtroom in sex offense cases during the victim's testimony by following the requirements of State v. Waller, that:
(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) the trial court must make findings adequate to support the closure.
Here, the court made adequate findings to close the court.
2nd, indictments were not defective, even though they did not give a specific date for a specific sexual act.
State v. Oates. State appeal of court grant of motion to suppress.
The trial court found that the affidavit that was used to get a search warrant was insufficient to establish probable cause.
The affidavit was based on an anonymous informant's tip. However, the tipper gave specific information that was corroborated by the police. This was enough.
Monday, December 31, 2012
Governor Perdue Pardons Wilmington 10
Today, Governor Perdue pardoned the Wilmington 10 on her way out of the door. She granted them a pardon of innocence. Her words are below:
"In 1980, a federal appeals court overturned the convictions in a written decision that highlighted the gross improprieties that occurred during the trial. The federal court determined as a matter of law that numerous instances of prosecutorial misconduct and other constitutional violations took place. Among other things, the court ruled that with regard to the testimony of the prosecution’s key witness – upon whose credibility the case depended entirely -- “the conclusion is inescapable that [he] perjured himself” and that “this fact was bound to be known to the prosecutor . . .” The court also declared that it was undisputed that key documents had repeatedly been withheld from defense lawyers. It also found numerous errors by the trial judge that had the effect of unconstitutionally prejudicing the defendants’ ability to receive a fair trial.
Since the trial ended, the prosecution’s key witness and two supporting witnesses all independently recanted their testimony incriminating the defendants. Furthermore, last month, new evidence was made available to me in the form of handwritten notes from the prosecutor who picked the jury at trial. These notes show with disturbing clarity the dominant role that racism played in jury selection. The notes reveal that certain white jurors believed to be Ku Klux Klan members were described by the prosecutor as “good” and that at least one African American juror was noted to be an “Uncle Tom type.”
This conduct is disgraceful. It is utterly incompatible with basic notions of fairness and with every ideal that North Carolina holds dear. The legitimacy of our criminal justice system hinges on it operating in a fair and equitable manner with justice being dispensed based on innocence or guilt – not based on race or other forms of prejudice. That did not happen here. Instead, these convictions were tainted by naked racism and represent an ugly stain on North Carolina’s criminal justice system that cannot be allowed to stand any longer.
Justice demands that this stain finally be removed. The process in which this case was tried was fundamentally flawed. Therefore, as Governor, I am issuing these pardons of innocence to right this longstanding wrong.”
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