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.

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