Wednesday, January 21, 2009

NC Court of Appeals Decisions (1.20.09)

NC Court of Appeals Criminal Decisions

Discussion

State v. Hueto, (08-503). Rape case with 7 counts, remanded for new sentencing. State alleged that Defendant lived with a girlfriend and had sex with with two of her minor daughters. The Judge boxcared the sentences, for a total 1384-1736 months. The record revealed the court imposed a harsh sentence, at least in part, because Defendant demanded a jury trial.

Prior to trial, the judge said: "Now the District Attorney has indicated to me that he would be willing to let me, if you are willing to plead guilty to one . . . B-1 felony, that he would be willing to put the sentencing [in] my hands and trust me to reach a fair sentence that everyone would be satisfied with. And I'm willing to do that for you. But if you say no, I want to have my jury trial, and let me emphasize that you have every right to a jury trial, and to let twelve people decide your case, but if you say you want to do that, then I will not be able to give you the help that I can probably give you at this point. And you are putting your faith in the hands of twelve strangers who do not know you, who do not know your situation, and if they find you guilty of the charges against both of these young girls, it will compel me to give you more than a single B-1 sentence, and I would have to give you at least two . . . and maybe more."

After, the trial judge stated: "To you, Senor Hueto, I regret that you do [sic] not choose to take the offer that had been made to you at the beginning of the trial to plead guilty for a lesser sentence. And I had told you that I did not know what I would . . . give in terms of a sentence but that I would await the jury's verdict. I believe the jury has spoken very clearly on how convinced they are of your guilt as to all of these charges. And based upon the jury verdicts as to each of these felonies, I intend to give you consecutive sentences for each of them."

Such sentencing violated the Defendant's right to request a jury trial. Remanded for resentencing.


Short Cite, No Reversals and No Issues of Note

State v. Young, (08-161). Defendant asserts that trial judge questioning of a witness created an impermissibile expression of judicial opinion and undermined her "claim of right" defense to misdemeanor breaking and entering. Court found that Defense failed to preserve this issue, as judge struck the offending question from the record and there was no request for a mistrial.

State v. Martin, (08-687). Indecent liberties with a minor. No due process violation for pre-indictment delay, where Dept. Social Services failed for years to inform law enforcement of pictures relating to the charge, because it was not intentional or done to gain tactical advantage. Court also upheld sufficiency of evidence, where there were pictures of Defendant and victim in "sexually suggestive positions" and reiterated that the "uncorroborated testimony of the victim" is sufficient evidence to convict. No double jeopardy problems as Indecent Liberties and Using a Minor in Obscenity are not the same offense under the double jeopardy test.

Wednesday, January 7, 2009

NC Court of Appeals Decisions (1.06.2009)

NC Court of Appeals Criminal Decisions

Discussion

State v. Buie, (07-1522). Defendant challenges admission of character evidence of the alleged victim and narration of surveillance tapes by the police in a rape case. The Court found such admission to be error, but that such error was harmless and affirmed conviction.

Character evidence: the prosecution offered evidence that the victim had good character, was involved in her family, had academic achievements, and was a community servant. All of this was in violation of Rule 404(a), which only allows the prosecution to introduce character evidence once a victim's character is attacked. The Defense theory of the case was that the victim, who was married to another man, voluntarily smoked crack with Defendant and engaged in consensual sex, and that she subsequently fabricated the allegations. This theory, articulated in opening, did not constitute submission of character evidence and did not open the door to rebuttal by the prosecution. (Ed. note: Character evidence is evidence about propensity, not facts in a particular case. Character is not attacked if you put on specific evidence of what happened. It is attacked if you put on witnesses that say, for example, the victim regularly smokes crack and has consensual sex with strangers. It is unclear if the Court of Appeals result would be different if this theory was put forth on direct of Defendant, rather than in the opening. If so, this would be an inappropriate interpretation of Rule 404(a) and would give prosecutor's unfair and broad discretion to use character evidence whenever Defendants decide to put on an affirmative case).

Narration of the Video: The court found that police narration of the video was inappropriate lay opinion testimony, not helpful to the trier of fact. Watching the video and determining what happened was the province of the jury and no opinion was necessary to explain it.

Nonetheless, the Court found the wrongful admission harmless, given other substantial evidence supporting guilt.

State v. Morse, (08-663). Defendant was set up by a police officer in an on-line sting operation in a chat room. He went to a 14-year-old's house to have sex and was arrested. His request for an entrapment defense instruction was denied. Court found no lack of predisposition and upheld the lack of jury instruction. (Ed. note: Really? Jury doesn't even get to decide this issue? Should police really be enticing citizens to break the law by offering sex?)

State v. Patterson, (08-518). Defendant appeals from larceny conviction. Court throws out conviction because the indictment was faulty on its face: it did not specifically aver that the victim, the First Baptist Church, was an entity capable of holding property. To succeed in larceny cases where an organization is the victim, the DA must specifically allege they are capable of holding property or include such designation as "Inc." in the title. Here, failure to do so invalidated the charging papers. (Ed. note: This ruling does not apply to shoplifting by concealment charges, which includes language that Defendant stole "from a store" rather than a possessor. See NC v. Wooten, 18 N.C. App. 652 (1973)).

Short Cite, No Reversals and No Issues of Note

State v. Early, (08-68). No error under 403 in admission of autopsy photos; no error in allowing prior statement; finding inadequate record below on issue of consent in search, but finding such error, if any, was harmless; finding failure to preserve discovery violations; no error in jury instructions; and no error in denial of motion to dismiss, as there was sufficient evidence.

State v. Green, (08-144). Affirming finding that informant's tip gave probable cause for a vehicle search.

State v. Liggons, (08-238). Finding throwing a rock at a car's windshield going 55 mph evidenced intent to kill. No error in jury instructions or expert testimony on "serious injury."

State v. Mitchell, (08-666) . No error on denial of motion to continue, admission of crime scene and other exhibits, and no error in closing argument of state.

State v. Moore, (08-345). No error in denying request for self-defense instruction, denying access to victim's juvenile records, sustaining repetitive question objection, and denying IAC claim. NOTE: Judge Arrowood dissented on the failure to give a self defense instruction.