Wednesday, March 18, 2009

NC Court of Appeals Decisions (3/17/09)

NC Court of Appeals Criminal Decisions

Discussion

State v. Boggess, (08-746). Mr. Boggess was sentenced to death in January 1997 for 1st Degree Murder on theory of felony murder and premeditation and deliberation. He successfully appealed and received a new trial. He was re-tried and convicted solely on theory of felony murder and sentence to life without parole. At trial, Defendant's theory of the case was a defense of unconciousnes. He claims that he was in a dissociative state when he committed the killing--a claim supported by expert testimony.

The trial court gave the unconciousness instruction only on premeditation and deliberation, not on felony murder. The trial court also refused to instruct that a person found not guilty by unconsciousness would be subject to involuntary committment.

The Court found that the unconsciousness defense was not a defense to felony murder, as evidence did not support a finding that he was unconscious when he committed the underlying felony (kidnapping). Under the courts interpretation, no further act is required; as such, Defendant's unconsciousness at the time of the killing is no defense to felony murder unless he was unconscious when he first committed the underlying felony.

State v. Cortes-Serrano, (08-591). 1st, evidence of age for statutory rape is sufficient even where only evidence is testimony of the victim; 2nd, each instance of sex is a distinct and separate offense, not part of a continuous transaction; 3rd, no improper promises or threats induced Defendant's confession; 4th, no improper cross examination by state about prior forcible rape charge--despite motion in limine denying such cross--where Defendant opened the door by saying, on direct that he “was scared . . . and they trying to tell me I done raped a Mexican girl.”

State v. Fields, (08-627). Police stopped Defendant on suspicion of DWI, due to weaving and crossing the white line. During stop, Defendant denied drinking and the officer saw no signs of drinking or any illegal activity. The officer ran his plates, then returned. On return, he noticed a pack of rolling papers. According to the officer, the Defendant then consented to a search of the car; the Defendant testified that he did not consent. During the search, the officer uncovered marijuana and cocaine.

The Court reversed, finding no reasonable suspicion to justify the initial stop. Weaving, without more, cannot produce reasonable suspicion of DWI. There must be other additional articulable facts to indicate a DWI (e.g. weaving and driving below the speed limit; weaving plus driing off the road; weaving plus speeding; weaving plus driving at 1:43a near bars; weaving plust driving at 2:30a near a nightclub). Here, Defendant weaving at 4:00p was not reasonable suspicion for a stop.

State v. Jacobs, (08-564). In first degree murder case, trial court refused to allow Defendant to inquire into the victim's prior bad acts and reputation--relevant to his self-defense claim. The Court refused to allow the following questions of one of the victims friends:
  • Did [Nichols] carry nine millimeters around with him all the time?
  • How many times have you seen [Nichols] carrying a nine millimeter?
  • Are you familiar with [Nichols] reputation in the community?
  • [W]hat do you know [Nichols] was [previously] convicted of?
  • [D]id you hear about [Nichols'] reputation?
Defendant was also prevent from entering in certified copies of the victim's prior convictions for armed robbery.

Court found that the reputation evidence was properly kept out, as the witness had no personal knowledge of the victim's convictions and the convictions were properly kept out under Rule 404(b) (ed. note: not relevant to state of mind??)

Note: Dissent by Judge McGee, that Defendant's knowledge of prior crimes by the victim was relevant to state of mind (in self-defense, defendant must show reasonable, actual fear is an element).

Other Cases

State v. Frady, (08-1215). Defendant argued that the Court lacked subject matter jurisdiction in a truancy case, as the school had not followed certain administrative procedures. The Court found that such procedures were not necessary to provide jurisdiction; rather, they were elements of the crime to be found by the jury.

State v. Lilly, (08-421). No fatal error where indictment, in injury to real property case, lists the lessee as the owner.

State v. Maynard, (08-847). Ordinance limiting number of dogs on property to three not unconstitutional. Defendant argued that the ordinance lacked a rational basis.

State v. Rinehart, (08-1209). No right to appeal prior motion to dismiss, where Defendant entered guilty plea.

State v. Vincent, (08-1137). In a murder case, Defendant's theory was that the victim's father had hit his car and he followed him home. Once there, they argued and Defendant pulled a gun. When the father grabbed his hand, he fired and the child victim was hit and killed. The trial court refused to give the accident or the manslaughter instruction. Under plain error review, the Court upheld conviction for 2nd degree murder. The Court found no heat of passion, as under Defendant's theory, the gun went off by accident during a struggle and under the State's theory, the gun went off during an argument (aparently, the argument wasn't enough to create a reasonable passion...)

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