Wednesday, April 22, 2009

NC Court of Appeals Decisions (4.21.09)

Cases of Interest

State v. Corbett, (08-1300) . Holding: Assault is not a lesser included offense of sexual battery, finding that assault has two elements not present in sexual battery: (1) "to do some immediate physical injury", and (2) the act must put a reasonable person in fear of immediate bodily harm. (Sexual battery requires (1) engaging in sexual contact with another person, (2) by force and against the will of the other person, and (3) for the purpose of sexual arousal, sexual gratification, or sexual abuse. N.C. Gen. Stat. § 14-27.5A (2007)).

State v. Fuller, (08-589). Court rules no problem breaking down the door to arrest someone without a warrant where, after the cops knocked on the door, the Defendant "ran out of view" and they had "no idea where he went." Apparently, in North Carolina, this was reasonable as an exigent circumstance for a warrantless entry into a home because the cops were aware of his prior record and "reasonably believed that a dangerous situation existed." (Of course, couldn't they have known all this before they ever went to his house and got a warrant to arrest him?) (A man's home is not a castle anymore, methinks) No dissent.

State v. Lamond, (08-940). In an assault case, Defendant was placed on 24 months probation. Sentence overturned, as judge did not make specific findings required by N.C. Gen. Stat. § 15A-1343.2(d) that "that longer or shorter periods of probation [than 18 months] are necessary." Vacated and remanded for new sentencing hearing

Other Cases


State v. McNeil, (08-1169). Appeal of LWOP sentence in 1st degree murder case. No plain error in judges failure to instruct on self-defense, where there were references it in other parts of the charge. Challenge to judge's decision to close the courtroom not properly raised. Judges statements and questions to witnesses are not sufficient prejudice to warrant a new trial, in light of overwhelming evidence of guilt.

State v. Osorio, (08-1199). After two days of deliberation, Defense counsel became ill. The Judge appointed a substitute and then gave an Allen charge to the jury. No error in failing to declare a mistrail after jury announced they were deadlocked, where there was no evidence that the judge expressed irritation; further, 9 hours of deliberation over 3 days is not per se unreasonable (i.e. so long as to be coercive).

State v. Thacker, (08-1090). In rape case, court did not err in denying motion for non-suit where victim testified that she was raped. No error in failure to instruct on lesser included charges where Defendant requested no such instruction.

State v. Wells, (08-1310). No error in giving instruction on flight. Court erred in not sentencing defendant as a habitual felon and counting crimes that made him a habitual felon as points in his ADWIKISI charge.

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