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.”