Wednesday, February 4, 2009

NC Court of Appeals Decisions (2.03.2009)

NC Court of Appeals Criminal Decisions

Editorial

State v. Adu, (08-582). The Court drops the ball, again, on proffered testimony that looks like propensity-evidence. In this sex abuse of a minor case, there was evidence that another person had previously sexually abused the child and there was an incident where the child's mother found blood on her underwear. Nonetheless, the Court excluded this prior abuse--which defense wanted to offer as an alternative theory to explain historic vaginal injuries--under rule 412. The rule is supposed to prevent unfair characterizations that, because a victim was promiscuous, they weren't raped; it is not supposed to exclude information that explains physical evidence. More proof that North Carolina courts do not understand the purpose of the legal relevance rules. The only rational distinction for figuring out whether or not a North Carolina Court will allow prior bad evidence in is who the proponent is. If the DA offers it against the Defendant, in it comes; if the Defendant offers it--even to explain physical evidence--it's out.

However, the Court did find error in allowing the State to question Defendant and make remarks in closing about Defendant's failure to make a statement to law enforcement--violating his right constitutional to remain silent. Of course, the court went on to hold this "harmless beyond a reasonable doubt." In a case that is basically about credibility of witnesses, such statements impact on the credibility of the Defendant, which is his whole defense. How this is harmless, I don't know. Another Constitutional violation held harmless by the NC arbiters of justice. More proof that once you are charged with a sex offense, the Court's won't honor your constitutional rights.

Discussion

State v. Cook, (07-1262). Finding that trial court refusal to allow Defendant, in a child sex abuse case, to develop motive to fabricate on cross of the victim, based on problems in the home was harmless, as such motive was developed through other questions and with other witnesses. The Defendant was not allowed to ask:
  • "What kind of fights did you have with your mother?"
  • "Do you recall crying a lot about having to do house work or you doing the work?
  • "[H]ow did you express your frustrations [over your living conditions]?"
  • "Isn't it a fact that you didn't want your mother to marry [defendant]?"
Further, a doctor testified that vaginal examination of the minor was consistent with sex. The Defendant was not allowed to call the victim's boyfriend, who would have admitted to having sex with the minor during the same time period as the alleged abuse or question the victim. The Court based it ruling on (1) the failure of the Defendant to present the boyfriend at the in camera Rule 412 hearing and (2) failure of Defendant to present evidence that the sexual conduct engaged in with the boyfriend could have caused those marks [ed. note: doesn't the doctor's testimony that the marks are consistent with sex do this?]

Finally, Defendant was not allowed to put on evidence that the victim had made prior false rape allegations against other persons. The trial court found such evidence was not barred by Rule 412, but was barred by 403. The court underpinned this holding by noting that the false allegation was covering up consensual sex, whereas the Defense theory was this allegation was simply made up. [ed. note: can you imagine a court ever excluding evidence of a defendant's prior lies? I can't]

State v. Herrera, (08-491). No error in LWOP 1st Degree Murder Case. First, found no 5th Amendment right to counsel violation where police listened in on Defendant's call to his grandmother (after asserting his rights). The Court found that because the grandmother was not acting as an agent for the police, there was no violation. Also, no error where baliff spoke to jury (about a recess) outside the presence of the Defendant, as no evidence of improper statements.

Short Cite, No Reversals and No Issues of Note

State v. Brewington, (08-501). Refusing to reach challenge to felony murder, as jury also found premeditation and deliberation (alternative theories of 1st degree murder).

State v. Ford, (08-936). Sentencing calculation and habitual felon status.

State v. Kuegel, (08-587). Consent to search voluntary, regardless of dishonest things police told defendant--they told him that they had arrested a bunch of people leaving his apartment with drugs (which was not true). Court found no coercion, under totality of the circumstances.

State v. Watkins, (07-1213). No error in denying motion to withdraw plea and no prejudicial violation of attorney-client privilege in prior attorney's testimony.

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