Friday, August 29, 2008

NC Court Of Appeals Update (Aug. 19, 2008)

August 19, 2008 Published Criminal Decisions of the Court of Appeals

State v. Spencer, No. COA07-1191 (August 19, 2008): Defendant was convicted of possession of marijuana with intent to sell, possession of paraphernalia, maintaining a dwelling house for drug purposes, and found him an habitual felon. Defendant allegedly made a statement during a police interview, which was later written up by the investigating officers based on their notes, but never acknowledged or signed by the Defendant. The trial court admitted this alleged confession into evidence and the Defendant did not object. Holding: Admission of the confession constituted plain error. This error was not harmless as to the maintaining a dwelling house charge, so a new trial is ordered on that issue. When a statement is reduced to writing by another person, it cannot be submitted as a confession unless (1) there is some signature or other approval by the Defendant or (2) it is a verbatim writing (or recording) with questions and answers. Here, it was just police notes, later written into a statement form, not signed or acknowledged by the Defendant. Full opinion here.

Additional Cases of Interest, Short notes.

State v. Bollinger, No. COA07-1062 (August 19, 2008): No error in case charging carrying a concealed weapon where indictment and jury instruction referred to knives, while facts indicated that Defendant carried brass knuckles. Full opinion here.

State v. Hunt, No. COA08-14 (August 19, 2008): Ordering new trial, finding plain error where jury instruction on lesser included offense of voluntary manslaughter placed the burden on the Defendant. Plain error review allows a new trial where there was no objection at trial for errors that are "so fundamental as to result in a miscarriage of justice or denial of a fair trial." Full opinion here.

State v. McDougald, No. COA06-164-2 (August 19, 2008): On remand from the NC Supreme Court, finding that failure of the lower court to suppress seized drugs was not harmless error and ordering a new trial. Full opinion here.

State v. Rodriguez, No. COA 07-1525 (August 19, 2008): Reducing Defendant's conviction for 1st Degree Kidnapping to 2nd Degree Kidnapping due to failure to allege all elements of 1st Degree Kidnapping in the indictment. Full opinion here.

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