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.

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