Wednesday, March 4, 2009

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

Court of Appeals Criminal Decisions

Discussion

State v. Thomas, (08-599). Ordering a new trial, where Defendant was denied his right to use his last peremptory challenge. After the jury was impaneled, the Judge learned that one of the seated jurors attempted to contact the DA's Office prior to impanelment. The Court re-opened voir dire. The juror had gone to the DA's office, hoping to see an old friend, but didn't find them. After voir dire, the Defense moved to use its remaining peremptory challenge to challenge this juror. The Court denied this and kept the juror seated.

Held: Once the trial court reopens examination of any juror, each party has an absolute right to exercise any remaining peremptory challenges. Because the judge denied Defendant use of his challenge, the case is remanded for new trial.

State v. Williams, (08-314). Denial of motion to suppress reversed and remanded on issue of plain feel doctrine. During terry stop (defendant was found near scene of robbery, matching a description of the robber), officer patted down Defendant and felt what he believed to be a "crack cookie. The officer pulled the bag out of Defendant's pocket and found a crack cookie. During search incident to arrest, he found a pipe and less than 1/2 ounce of Marijuana.

First, the Officer had reasonable, articulable suspicion as the Defnedant was in the vicinity of the armed robbery, in the direction which the robber had fled, and matched the general description of the robber (African-American male, about 6' tall with medium build, wearing a green jacket with a hood). The fact that this description was part of a second BOLO, correcting the first one, did not deprive the officer of reasonable suspicion.

Second, the trial court applied the wrong standard for plain feel. The trial court applied a "reasonable suspicion" test to the plain feel. This was the wrong standard. For plain feel searches, it must be immediately apparent to the officer that the object is a contraband, giving him probable cause.

Other Cases

State v. Revels, (08-346). Appeal of refusal by trial court to instruct on self defense and imperfect self-defense. To obtain either instruction, there must be evidence--any evidence in the record--that Defendant had a reasonable belief that it was necessary to kill his adversary to protect himself from death or great bodily harm. In this case, the court found such evidence was not present.

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