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.

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