Wednesday, October 22, 2008

Court of Appeals Decisions, 10/21/08

Update: Criminal Decisions of the NC Court of Appeals issued 10/21/08. Full opinions available by clicking on case. No reversals.

Long Notes.
State v. Allen, (08-215). In assault with a deadly weapon causing serious injury case, Defendant contends that the use of hands and fists do not constituted a deadly weapon and that he did not inflict serious injury. Held. Hands and fists may be deadly weapons, depending on how they were used and the relative size of the parties. Here, Defendant was 25, 7" taller, and 40lbs heavier than the female victim, making his hands deadly weapons. Serious injury occurred here, as the victim had traumatic head injuries, extreme facial bruising and swelling--including an eye swollen shut for a month, and was bleeding from her ear and nose. Also distinguishes Hinton, which found that hands cannot be a dangerous weapon for charge of robbery with a dangerous weapon, finding the standards for dangerous weapon in that charge is different than in assault charges, even though they are lesser included offenses.

State v. Chappelle, (07-1312). Held. Evidence of prior fight was admissible under 404(b) to show motive, including details of the fight that characterized Defendant as "thief" and a "robbery" in crimes completely unrelated to the charged conduct. No error on other issues, including inflammatory closing argument statements suggesting need to protect society--Defendant is an "impulsive, dangerous criminal" and he "won't be on the streets to...rob anybody's house...or set another person's house on fire," deeming the argument abandoned for not citing supporting law and finding that these were "specific" deterrence, not general deterrance, and thus appropriate statements.

State v. Crockett, (07-1283). Defendant contends improperly sentenced because state did not produce sufficient evidence of a prior conviction.

N.C. Gen. Stat. § 15A-1340.14(f) provides that "A prior conviction shall be proved by any of the following methods: (1) Stipulation of the parties; (2) An original or copy of the court record of the prior conviction; (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts; (4) Any other method found by the court to be reliable."

Here, Prosecution evidence of Dept. of Criminal Information criminal history and printout from records maintained by the Sherriff's office were sufficient to prove the prior conviction, despite Defendant's claims that he was only convicted of breaking and entering and the judgment only reflected only this charge.

State v. Johnson, (08-55). The facts of these case are too good to summarize:

"The State's evidence tended to show the following: During the early hours of 15 March 2005, Lisa Stewart (“Ms. Stewart”) made two calls to 911 regarding a domestic dispute with her ex-boyfriend,defendant. Ms. Stewart made the first call to 911, stating that defendant had a knife and was pacing on her back porch. Defendant's presence at Ms. Stewart's residence was in violation of a domestic violence protection order which Ms. Stewart had obtained against him. Corporal A.N. Swaim (“Corporal Swaim”) with the Winston-Salem Police Department arrived at Ms. Stewart's apartment shortly thereafter, but defendant was not present when she arrived. Ms. Stewart stated that she did not want to press charges for violation of the domestic violence protective order.
Shortly thereafter, Ms. Stewart again contacted 911 regarding
defendant, and Corporal Swaim returned to Ms. Stewart's apartment. When Corporal Swaim arrived, defendant was pulling on Ms. Stewart's screen door while holding a knife and yelling “please let me in.” Ms. Stewart's door was “rigged” in a way that made it difficult to open. Corporal Swaim repeatedly told defendant to put the knife down and drew her service weapon. Defendant told Officer Swaim, “You're going to have to kill me. I'm not going back to jail[,]” and resumed demanding that Ms. Stewart “[l]et [him] in.” Other officers arrived at the scene.
Corporal Swaim and Officer Banville both sprayed defendant with pepper spray, but defendant merely “wiped it off.” Defendant became more agitated and continued yelling “let me in,” while wielding the knife. Eventually defendant was able to pull the storm door open.
Once inside, defendant pushed Ms. Stewart, slammed the front door shut, and locked it. Officer Swain then heard defendant say,“I'm going to kill you.” The officers unsuccessfully attempted to kick in the front door. Approximately a minute and a half to two minutes after defendant entered Ms. Stewart's apartment, Corporal Swaim observed defendant light curtains on fire with a cigarette lighter. The officers were able to gain entrance with a key from Ms. Stewart who had exited her apartment out the back door shortly after defendant had entered the front door.
Officer Swaim then observed defendant running up the stairs with the knife. By this time the apartment was considerably ablaze, and the officers unsuccessfully tried to stop the fire. Officer Swaim went outside and observed defendant who had come out of an upstairs bedroom window and onto the porch roof. Defendant was pacing back and forth saying, “You're going to have to kill me. I'm not going back to jail.” Defendant then jumped from the porch roof to an adjacent apartment and crawled into the apartment through a window.
As members of the Winston-Salem Police Department Special Enforcement Team were trying to open the door to the room where defendant was barricaded, defendant brandished a knife through an opening in the door and stated “I'll cut you” and “take one of you out”. Eventually defendant told the police he was “coming out[,]” and he was taken into custody." Now that is good policework!

Held. First, the Court denied a challenge to admission of a prior inconsistent statement, where the right of error was waived by failure to object. Second, on the burglary, Defendant requested the following jury instruction:

"The offense of burglary is the breaking and entering with the requisite intent. It is complete when the building is entered or it does not occur. A breaking and an entry without the intent to commit a felony in the building is not converted into burglary by the subsequent commission therein of a felony subsequently conceived."

The Court's submission, that "For you to find the defendant guilty of this offense, first degree burglary, the State must prove six things beyond a reasonable doubt. . . . Sixth, that at the time of the breaking and entering, the defendant intended to commit arson" was sufficient to not mislead the jury.

Finally, no error in submitting to jury that they could consider flight as evidence of guilt, as sufficient evidence of flight existed (in statement "I'm not going back to jail", etc.).

State v. Lofton, (07-1530). Appeal of admission of prior bad acts (under 404(b) and 403) and admission of inflammatory sympathetic facts about victim's mental condition (under 403). No objection at trial, so reviewed under plain error analysis. Plain error is "a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done."

Here, prior acts of violence toward a significant other are admissible under 404(b) to prove motive, opportunity, intent, preparation, and absence of mistake in subsequent attacks upon her. Admissible where sufficiently similar and not too remote. In this case, they were sufficiently similar and less than a year old. Not a problem under 403.

The statements about victim's mental state were not irrelevant; they were within the meaning and intent of the term serious injury in the charge of assault with a deadly weapon causing serious injury.

Tuesday, October 14, 2008

NC Supreme Court Decisions (10/10/08)

The Court issued two criminal decisions:

State v. Haislip, (513PA07), a case on whether to suppress evidence seized from a checkpoint stop was remanded to the trial court for additional findings of facts and conclusions of law, finding an inadequate record upon which to make a decision.

State v. Turnage, (228A08), the Court of Appeals overturned Defendant's burglary conviction where only exterior damage to a home was found and there was no testimony or other evidence placing the Defendant inside the home or that any entry had occurred

First, the Court found adequate evidence that the charged Defendant was the identified perpetrator and reversed that portion of the judgment.

Second, the Court remanded on the element of entry.

To show the the element of entry required for a burglary conviction, “the least entry with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, is sufficient to complete the offense.” The Court remanded to the Court of Appeals on the issue of whether an entry had occurred with the following directions:

"Assuming without deciding, that, as a matter of law, the fact of entry for purposes of burglary may be established by an instrument crossing the plane of the door at the moment the glass broke, the conclusive second sentence does not comport with a correct application of the test for a motion to dismiss based on insufficient proof of entry. Under the long-established test for a motion to dismiss as outlined above, if, as a matter of law, the evidence of broken glass permits a reasonable inference of the fact of entry “in that a body part or instrument may have crossed the plane of the door at the moment the glass broke,” id., then the evidence of entry was sufficient to submit to the jury and to withstand a motion to dismiss as to that element of burglary. Thus, the two statements in the above indented quotation cannot lie down together."

Wednesday, October 8, 2008

NC Court of Appeals Update (Oct. 7, 2008)

Court of Appeals Criminal Decisions from 10/07/2008

State v. Atkins, (07-1134). Background. Defendant charged with second degree rape by engaging in sexual intercourse with one who is "physically helpless." State alleges he climbed in window of 83-year-old neighbor (who knew him) and took her by force while she screamed for help. Holding. Affirmed because, given victim's physical infirmities (severe arthritis and use of walker to get around) and age, she was physically helpless.

"N.C. Gen. Stat. § 14-27.1(3) defines “physically helpless” as “(i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.” N.C. Gen. Stat. § 14-27.1(3) (2007) (emphasis added). The American Heritage Dictionary (2d ed. 1982) defines the word “resist,” in part, as meaning, “[t]o strive or work against; oppose actively.” Thus, a “physically helpless” victim, as used within N.C. Gen. Stat. . 14-27.3(a)(2), is a victim who is “physically unable to [[t]o strive or work against; oppose actively] an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act[.]”

State v. Villatoro, (07-1458). Background. Defendant moved to withdraw his guilty plea, four months later, alleging ineffective assistance of counsel and that his counsel had coerced him into taking the plea. The Court denied his request. Holding. No error as Defendant failed to assert a reason allowing withdrawal. Pleas can be withdrawn for "any fair and just reason."Factors include "[1] whether the defendant has asserted legal innocence, [2] the strength of the State's proffer of evidence, [3] the length of time between entry of the guilty plea and the desire to change it, [4] and whether the accused has had competent counsel at all relevant times. [5] Misunderstanding of the consequences of a guilty plea, [6] hasty entry, [7] confusion, and [8] coercion are also factors for consideration." First, the Court determined he did not assert innocence, because Defendant only stated that he "did not feel he was guilty." Second, the State's proffer of evidence was strong and included a confession. Third, the four month delay here was too long, given the lack of evidence that Defendant was low-functioning or did not understand the plea process. Further, Defense counsel statements to Defendant about aiding and abetting were not incompetent. Finally, there was no evidence of hasty entry or that the Defendant did not understand the terms of the plea.

Additional Cases: Short Notes

State v. Cook, (06-1355-2). 1) Defendant's failure to lay proper foundation and, sui sponte, admonishment of court outside of jury without explanation to jury was not error. 2) Officer's statement that, in his opinion, Defendant was drunk at the time of an accident was inappropriate due to lack of personal knowledge/foundation. Such statement, however, was only harmless error.

State v. Lawrence, (08-320). Striking down sentencing where trial judge applied the wrong grid and misclassified two offenses.

State v. Lee, (08-122). The Court denied Defendant's challenge to prior conviction points for an out-of-state charge. "If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points." Here, Defendant's stipulation to both the "classification and points" included a stipulation that the out-of-state conviction was substantially similar to a NC Class 1 misdemeanor.

State v. Murphy, (08-382). Finding no error where a prosecutor charged Defendant as a habitual felon only related to a minor gun charge and also sought conviction of Defendant on robbery charges at a higher sentencing level (because the three prior felonies cannot be counted in determining sentence levels if charged as habitual felon), even though this resulted in a higher sentence than if he was charged as a habitual felon for all counts.

State v. Narron, (08-129). Upholding as constitutional the crime of driving while intoxicated, finding that the statutory language, "[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration" did not create a presumption that places an impermissible burden on the Defendant. The Court concluded that "the challenged provision does not create an evidentiary or factual presumption, but simply states the standard for prima facie evidence of a defendant's alcohol concentration."

State v. Shaffer, (08-214). Upholding conviction despite inconsistent jury verdicts because "In North Carolina, it is well-established that "'a jury is not required to be consistent and that incongruity alone will not invalidate a verdict.'"

State v. Tanner, (08-251). The Court reduced Defendant's felony possession of stolen goods conviction to a misdemeanor conviction, where the basis for felony possession was that the goods were stolen during a breaking and entering and the jury found the defendant not guilty on the underlying breaking and entering charge.

State v. Walston, (08-15). In a cocaine possession case (where cocaine was seized from the ground during a police chase) the Court found no material prejudice where the trial court denied a continuance for Defendant to obtain the presence of a police officer who conducted the canine search that uncovered the cocaine. The Defendant's proffered reasons, that the officer could explain the route taken to discover the evidence, did not clearly state that the officer's testimony could be used to challenged whether Defendant possessed the dropped drugs.

The Case was remanded for resentencing, however, because the trial court incorrectly believed that GS 90-95h(6), "[s]entences imposed pursuant to this subsection [including trafficking] shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder sentence is imposed pursuant to this subsection shall run consecutively" mandated the court to impose a consecutive sentence. Rather, prior cases establish that consecutive sentences are not mandatory for multiple drug trafficking offenses that are disposed of in a single proceeding.

State v. Welch, (07-1557). Relying on past precedents that eviscerate the meaning of Rule 404(b), the Court allowed in evidence of Defendant's past sales of drugs to show "identity" and "common scheme" in his current charge of selling drugs. This case fits in a long line of NC cases that eviscerate the rule against allowing litigants to admit evidence of prior bad acts to show action in conformity therewith. Originally (and in most jurisdictions) the identity and common scheme distinctions were allowed where, by some inference other than propensity, a prior bad act could show identity. For example, if a Defendant stole a gun and later someone was shot with it, you could show evidence of him stealing a gun because he makes it more likely that he was the shooter (or, if Defendant stole a car to use as a getaway car in a robbery, you could use the evidence of the car theft in the robbery). Here, the Court says that, because the Defendant sold drugs before, it makes it more likely that he is the identity of the drug seller in this case. That is pure propensity and exactly what Rule 404(b) intends to prevent. Nonetheless, NC Courts have opened the door through these gaping exceptions to allow nearly any prior bad act into the Court room. The danger, of course, is that a jury will convict because the Defendant is a criminal and bad actor, not because he committed the actual conduct charged.

State v. Bowman, (07-1518) . Upholding an automobile search, relying on the "collective knowledge" of the police that probable cause existed, even though no evidence was presented that the searching officer had no particularized basis for believing probable cause existed or had been directed by another officer whose possessed such knowledge to conduct the search.

Tuesday, October 7, 2008

NC Court of Appeals Decisions

The Court of Appeals Issued 11 Criminal Decisions Today. Links are below.

Detailed discussion to follow shortly.

Thursday, October 2, 2008

NC Court of Appeals Update (Sept. 16, 2008)

September 16th Criminal Decisions of the Court of Appeals

State v. Abshire
, (07-1185) (Sept. 16, 2008) (Judge Elmore). Background. Defendant, a woman who was convicted of indecent liberties with a minor over 13 years ago, was convicted for failing to update her address with the sex offender registry. She had previously updated it 13 times. Unsafe conditions in the home (she was assaulted by her brother once and her computer was stolen) caused her to move back and forth between her registered residence and her father's home. Based on her 10 day absence from her registered address, she was convicted for failure to register and sentence to 18 months. Holding. Conviction overturned, as the trial judge should have dismissed for insufficient evidence. To prove a change of address case, the state must show: (1) failure to register within 10 days of; (2) a change of address; by (3) a sex offender. Here the Court defined address as "as a place where a registrant resides and where that registrant receives mail or other communication." Because the Defendant continued to receive mail and return to her prior address, there was no change of address and thus no registration of such change was necessary.

State v. Milligan (08-151) (Sept. 16, 2008). Background. A prosecution witness made statements at trial that contradicted a prior statement received from the DA in the form of handwritten notes. The Court refused to allow the Defendant to enter that evidence to impeach the witness or call the DA to testify to the prior statement. The Court did allow the defense to inquire into that prior statement. Holding. Handwritten DA notes of witness statements are discoverable under N.C. Gen. Stat. § 15A-903, but may not be entered as evidence to impeach. Defense counsel may only inquire of the witness if they spoke to the DA and said those things. The Court further upheld the lower court denial of defense right to call the DA to testify to the substance of that statement. The Court offered no justification for this portion of the decision.

Additional Cases of Interest and Short Notes.

In re D.M.
(08-175) (Sept. 16, 2008). Minor was committed to the juvenile facility for violating his supervised release conditions that he follow group home rules. Specifically, he "used profanity, constantly interrupted conversations during group sessions, and was disrespectful to members of the staff." The Court affirmed that violations of requirements of conditional release allow re-commitment based on the prior orders and findings of commitment (from which the conditional release was granted).

State v. Bunch (08-91) (Sept. 16, 2008). Defendant challenges his probation violation conviction where he was originally prosecuted by the same attorney who was appointed his defense counsel at the probation violation hearing. Defendant challenges the failure of the Court to inquire into the conflict of interest. First, the COA ruled the trial court did not have to inquire into conflicts on its own and the failure of defense counsel to raise the issue obviated the need for an evidentiary hearing on the conflict. Second, the COA found no existence of an ineffective assistance of counsel claim as there was no record of how he was adversely affected by the conflict.

State v. Hinchman (07-1549) (Sept. 16, 2008). Held that double jeopardy not implicated by license revocation for drunk driving--even though revocation occurred 140 days after the offense--and subsequent prosecution for DWI.

State v. Murray (07-1555) (Sept. 16, 2008). Held that since the officer on voir dire stated that he had no reason to believe that the Defendant was engaged in crime when he made a Terry stop, evidence seized during that stop must be suppressed as fruit of an illegal seizure (i.e. an investigatory stop made without reasonable suspicion). Only reason offered by the officer in making a traffic stop was to "see what they were doing."

State v. Smith
(08-21) (Sept. 16, 2008). Held that stop made of Defendant's car was legitimate where abnormal registration tag gave rise to reasonable suspicion of crime. During stop, officer smelled marijuana, giving rise to probable cause to conduct a warrantless search the Defendant's car. Discovery of the gun (the item at issue in suppression) was discovered in plain view during that legitimate search and is thus admissible evidence. The Court went on to find that the State adequately proved the Defendant possessed the gun by showing he possessed the car in which it was found and owned other items found in the same area as the gun.

State v. Webb (08-198) (Sept. 16, 2008). Overturned trial court denial of motion to dismiss a possession of stolen goods case where the items were found in the Defendant's home, but another resident's uncontradicted testimony indicated that he, not the Defendant, stole the items and that he concealed them from the Defendant so that he wouldn't get kicked out of the home. The Court found the state had not proved the knowledge requirement necessary to show the Defendant constructively possessed these items. “When the evidence most favorable to the State is sufficient only to raise a suspicion or conjecture that the accused was the perpetrator of the crime charged in the indictment, the motion for judgment . . . of nonsuit should be allowed.”

Wednesday, October 1, 2008

CNN: Ban on execution of child rapists stands

WASHINGTON (CNN) -- The Supreme Court has refused to reconsider its June ruling banning capital punishment for child rapists, rejecting Louisiana officials' argument that a "significant error" led to its conclusion that there is a "national consensus" against executing non-murderers.

Full Story Here.

Man could face death row for scaring woman to death

(Taken from NewsChannel 36, Glenn Counts)

GASTONIA, N.C. -- A man accused of breaking into an elderly woman's home and frightening her to death made his first appearance in court Monday, accused of murder.

In an effort to get away from the police, Larry Whitfield is accused of breaking into the home of Mary Parnell. Parnell, 79, had a heart attack, and prosecutors have blamed Whitfield.

Despite being warned about his right to remain silent, Whitfield spoke before the court Monday.

"I didn’t mean for none of this to happen," Whitfield said. "I'm a good kid, I just made a careless mistake. All I ask is that you give me a decent bond, even house arrest. I ain’t never been in trouble in my life, your honor."

In fact, before Friday, both Whitfield and Quanterrious McCoy could have been considered good kids. They have clean records and graduated from Harding High School with honors. McCoy's mother told the judge about her son's background in the hopes that he would reduce his $175,000 bond.

Read on...