Thursday, April 9, 2009

NC Court of Appeals Decisions (April 7, 2009)

Discussion of Notable Cases

State v. Castaneda, (08-790). Trial Court, in a first degree murder case, deviated from the agreed upon language at the charge conference and referred to a witness as an "accomplice" rather than "alleged accomplice." The Court found that this was prejudicial error, intimating at the strength of the evidence, requiring a new trial.

State v. Long, (08-846). During jury deliberations, the jury requested to have the Defendant's and the victim's trial testimony transcript read back to them. The judge decided that, because they didn't have real-time transcripts, they would not provide anything to the jury. When defense counsel asked how long it would take to prepare, the Court stated: "We don't do that in North Carolina. We do not do that." A trial court ruling on requests by the jury for a restatement of evidence is in the discretion of the trial court. New trial ordered, because the trial court did not exercise its discretion; rather, the trial judge's statement show his erroneous belief that he did not have the discretion to grant the request.

State v. Neal, (08-690). Defendant's challenge to conviction for possession with intent to sell cocaine based on the small amount seized denied, because the state presented evidence of an actual sale. No error in using same prior as underlying for both possession by a felon of a firearm and habitual felon status. Jury not prejudiced by prosecutor reviewing Defendant's record at counsel table during charge.

Defendant challenged the seating of a Johnston County Magistrate as a member and foreperson of the jury, as the magistrate had prior involvement with the case and knew the Defendant. The Magistrate was involved in the return of service when Defenadant was arrested for two prior drug charges. He further signed the return of service on the warrants for possession of cocaine with intent to sell, possession of firearm by felon and robbery with a dangerous weapon, which defendant was being tried. He also had set the release condition on the above charges. During voir dire, it was not revealed that the Magistrate had knowledge of defendant's prior record, so he was not challenged for cause. While the issue was not raised below, the Court nonetheless granted relief, finding that Defendant was denied his right to trial by an impartial jury.

State v. Rooks, (08-551). Police arrived on scene, after Defendant's wife called police regarding child molestation. When police arrived, Defendant was on the front porch crying. He was placed by police in a car and interogated for an hour. During the interogation, he was told he was not under arrest and was free to leave. Defendant consented to a search of the home, during the interogation. The trial court found he was in custody, was not given miranda warnings, and suppressed the statements and the search.

The Court of Appeals reversed, finding he was not in custody: "In the instant case, the trial court found that defendant was asked politely by the detective to enter an unmarked police car and answer questions. He was told that he was not under arrest. The car was unlocked and defendant was left unattended after the officer completed the interview. No evidence was presented indicating that the officer displayed a weapon, or otherwise threatened the defendant. Considering all the facts and circumstances, we conclude there are insufficient findings to support a conclusion that 'there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.'"

Defendant conceded error on the exclusion of the evidence. Violation of Miranda warnings do not require suppression of the fruits or render consents to search invalid. Only involuntary confessions do that.

State v. Ryder, (08-489). New trial ordered in robbery and kidnapping case, as jury was not instructed on the lesser included offenses of false imprisonment and common law robbery. Sufficient evidence existed for a jury finding of the lesser offenses.

State v. Best, (08-659). Defendant convicted for accessory after the fact to first degree murder and to first degree kidnapping. Court found this violated double jeopardy, because the jury could have found Defendant guilty of accessory after the fact to 1st degree murder based on the kidnapping.

Briefs on Other Cases

State v. Bryant, (08-962). Held: Any error on failure to instruct on voluntary manslaughter based on imperfect self defense is cured by jury finding of premeditation and deliberation for first degree murder and seizure of Defendant's rap lyrics notebook was pursuant to valid search warrant, as the warrant included seizure of documents related to the crime and Defendant's name was on the outside of the notebook.

State v. Dean, (08-344). During a first-degree murder gang case, Judge J.B. Allen removed four persons from the audience who were friends with the Defendant because he believed they were gang members and the jury reported feeling intimidated. Judge Allen rested his ruling, in part, on statements by jurors at a prior mistrial that they felt intimidated by gangs in Durham. Defendant contends that this violated his right to a public trial, especially since there was no overt evidence of intimidation. The Appellate Court refused to deal with the Constitutional issues, as the Defendant, at trial only objected that the Trial Court had removed his support and the friends had done nothing wrong. The Appellate Court upheld the removal, honoring the discretion of the trial judge.

No error in admitting evidence of prior assaults by Defendant, where they were committed with the same firearm as this case.

State v. Johnson, (08-604). No error on jury instructions and courts finding that certain mitigating factors for sentencing were not present.

State v. Rush, (08-871). Appeal of First Degree Murder and Robbery convictions. No error in failure to intervene ex mero motu during prosecutor's closing argument:

"Mercy? The State is not asking you to execute this man. They're not seeking the death penalty. That's a lot more mercy than was shown this 13 year old. A lot more mercy. We're asking you to find him guilty and let him spend the rest of his life in prison, so another 13 year old boy isn't innocently gunned down."

Defense contends this is an improper general deterrant remark. The Court found it was a specific deterrent argument--that this defendant won't kill again--which is permissible.

The Court further found sufficient evidence on the 1st degree murder, as evidence showed Defendant was acting in concert with another to commit a robbert and his co-defendant shot and killed the victim during that robbery--sufficient evidence for a finding of felony murder.

The Court did remand, however, and order the court to arrest judgment on the robbery count, as it merged with the 1st degree murder, under the felony murder merger document. Defendant should be resentenced to life without parole, not life without parole plus a term of years on the robbery.

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