Wednesday, November 5, 2008

NC Court of Appeals Decisions (11.4.08)

NC Court of Appeals Criminal Decisions

Discussion.

State v. Bowden, (08-372). Reversing lower court denial of an MAR under the old N.C.G.S. section 14-2, finding that a life sentence equals 80 years, and it is not within the Dept. of Corrections authority to determine if life sentences are "commuted" to 80 years. Remanded for calculation of time, including reduction credits, to determine if Bowden is eligible for release.

State v. Jacobs, (04-541-2). Trial court erred by unilaterally finding aggravating factors, increasing the Defendant's sentence. Because the Court relied on evidence necessary to proving the underlying charge in doing so, such error was not harmless. Remanded for resentencing.

State v. Phair, (08-326). Defendse Attorney Nicole Phair appeals two counts of contempt. First, she was found in contempt because her cell phone rang during the State's examination of a witness. This was overturned as it was clearly a mistake, not "willful" conduct, as required to be contempt. Second, she was found in contempt for asking her client whether the police contacted him after a certain date, because this was a suggestion that police contacted him after his rights to counsel attached and that police acted innappropriately. The Court reversed, stating:

"Defendant's question was logical in terms of context: the State had just finished its cross-examination of the accused regarding whether the accused had provided address information to the investigating detective. On redirect, defendant asked whether the investigating detective had asked for this information on the date the accused made his statement to the detective; when the accused answered in the negative, defendant asked whether the detective asked for the address information after that time. This question was the basis of finding defendant in contempt.
As mentioned above, N.C. Gen. Stat. § 5A-11(a)(1) states that “[w]illful behavior committed during the sitting of a court and directly tending to interrupt its proceedings” constitutes criminal contempt. Defendant again argues that she did not intend to mislead the jury and, thus, did not willfully violate this statute.
While it is true that, given some thought, a juror hearing defendant's question might have understood it to have the improper implication the trial court gave it, the court's holding defendant in contempt seems an extreme reaction to a question that defendant could have easily been told to rephrase. A reading of the transcript reveals decided animosity between the trial court judge and defendant; during the discussion out of the jury's presence on the propriety of this question, for example, the judge made several comments like: “you just make sure you pay $1,000 within the next 10 days[;] otherwise I will personally report you to the statebar”; “I don't care if you appeal”; “And you don't be arguing with me. Do I put you in jail right now[?]”; and “The only thing you had to do was keep your mouth closed and admit you'd made a mistake.”
Again, it does not appear that defendant's actions were willful or intended to mislead anyone present. In context, the question appears to be a logical next step in the course of questioning to any reader of the transcript. As such, we hold that the trial court's findings of fact are not supported by competent evidence and do not in turn support the conclusions of law in this order. Thus, we reverse it."

No Error Found and no terribly interesting arguments in:

State v. Ash, (07-1456) - Voluntary intoxication; Corpus Delicti Rule; felony murder

State v. Ballard, (08-196) - Jury instructions

State v. Coley, (07-645) - Imperfect self-defense jury instruction; competent to stand trial; Fifth Amendment right to remain silent (while violative of the 5th Amendment, no plain error meriting reversal where a detective told the jury that he attempted to question the defendant and the defendant invoked his Miranda rights).

State v. Robledo, (07-1568) - Knowing possession; conspiracy to traffic marijuana

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