Wednesday, February 18, 2009

Court of Appeals Decisions, 2/17/09

NC Court of Appeals Criminal Decisions

Discussion

State v. Hodges, (08-474). First, found reasonable suspicion to extend traffic stop where driver "misidentified" his passenger, appeared nervous, and was viewed appearing to place something under his seat.

Second, and more interestingly, Defendant challenges admission of his passenger's statement consenting to the car search under Crawford (which held that testimonial statements--e.g. statements to police during interogation or to a grand jury--cannot be entered in without cross examination under constitutional confrontation rights). The Court initially found that he had no standing to challenge the car search, as the Defendant told the officer he had to ask permission of the passenger to search. Next, the Court found the statement to be non-hearsay (consent is a verbal act and is always non-hearsay) and thus admissible.

Ed. note: Here's the crazy part--this wasn't a hearsay argument, it was a Crawford argument. Under Crawford, it doesn't matter whether or not it was under a hearsay exception. If it was "testimonial", it must be subject to cross-examination. This decision missed the key issue and didn't analyze the constitutional claim at all.

State v. Tyson, (07-1376). Defendant's theory of the case, in this statutory rape case, was that he was unconscious during the alleged sexual acts. The victim told police that she had given the Defendant pills to knock him out, collected Defendant's semen, and impregnated herself. DNA tests showed that Defendant was the father of both of her children.

Her testimony at trial is cited as follows: "The State's evidence tends to show the following: on direct examination by the State, N.B. testified that she had given Defendant pills and then waited until it looked like he was passed out. She then “unzipped his pants[,] pulled his privacy [sic] out and started jacking him off.” She acknowledged that his penisbecame erect while she was doing this, and that “after that a little cum came out. . . . I got on top of him.” N.B. further testified on direct examination that during intercourse, Defendant did not respond to her, did not say anything to her, did not move, and did not open his eyes."

Other evidence included a statement to a police officer, who doubted his story, that he would have to think of something else and letters between the Defendant and the minor with the statement, "can I get in them drawers."

Because evidence of unconsciousness arose out of the state's evidence, it was the state's burden to prove consciousness beyond a reasonable doubt. Because of these statements and despite the victim's contrary testimony, there was adequate evidence for a jury to find he was conscious, beyond a reasonable doubt.

However, new trial granted as jury was instructed improperly and were not told that the state had a burden to show consciousness beyond a reasonable doubt. This error was not harmless, especially given the juries inconsistent verdict: guilty of statutory rape and not guilty of indecent liberties with a minor.

Note: Dissent by Hunter, saying they should have dismissed for lack of sufficient evidence.


No Reversals or Interesting Decisions

State v. Hudgins, (08-441). Appeal of motion to suppress vehicle stop. Unidentified informant called police and said he was being followed by a man with a gun, describing the car. Police pulled a car matching this description. During stop, police arrested Defendant for DWI. The Court found the informant to have the following indicia of reliability, giving reasonable suspicion.

"In the instant case, there were indicia of reliability similar to those that existed in Maready: (1) the caller telephoned police and remained on the telephone for approximately eight minutes; (2) the caller provided specific information about the vehicle that wasfollowing him and their location; (3) the caller carefully followed the instructions of the dispatcher, which allowed Officer Palmenteri to intercept the vehicles; (4) defendant followed caller over a peculiar and circuitous route that doubled back on itself, going in and out of residential areas between 2 and 3 a.m.; (5) the caller remained on the scene long enough to identify defendant to Officer Palmenteri; (6) by calling on a cell phone and remaining at the scene, caller placed his anonymity at risk."

State v. Massey, (08-831). No right to entrapment instruction in undercover buy and no error in admitting indictments for prior felonies in support of habitual felon status, during the habitual felon portion of the trial. No error in calculating points for sentencing.





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