Wednesday, May 20, 2009

Court of Appeals Update, May 19, 2009

Reversals and Interesting Issues

State v. Douglas, (08-1287). Special Verdicts: New trial ordered. Jury entered a special verdict, finding that Defendant possessed cocaine with intent to sell and sold cocaine to an undercover officer. If did not render a general verdict of guilty (or not guilty). Special verdicts (on issues of guilt rather than finding aggravators/etc), are constitutionally impermissible--violating the 6th Amendment right to a jury trial. Juries must make an actual finding of guilty or not guilty.

State v. Fowler, (08-652). Defendant won a motion to dismiss in district court, with the court finding the officer lacked probable cause for the stop and a reasonable jury could not convict. The State appealed to Superior Court. The Superior Court found that the State could not appeal under N.C.G.S. 20-38.6 and 20-38.7 as that would violate Due Process and Double Jeopardy.

1st, Jeopardy had not yet attached as the Court dismissed the State's case based on a pre-trial motion; jeopardy does not attach until the Court begins hearing evidence on the issue of guilt or innocence, not pretrial motions (NCGS 20-38.6(a) requires motions to suppress evidence for implied-consent offense must be done prior to trial). Double jeopardy does, however, preclude appeal in dismissals for motions made during trial (authorized where based on new information learned at trial--ed. note: which happens all the time in district court as there is no discovery)

2nd, no due process violation either.

State v. Gayton-Barbossa, (08-863). Larceny conviction vacated where indictment said property belonged to a different person than the evidence the state presented at trial.

State v. Popp, (08-985). In April 2006, Court entered a PJC (with a variety of conditions-such as performing community service and keeping a curfew). In February 2007, Court came back and ordered Defendant to comply with random drug testing, pay $200 for community service, and pay supervision fees. In March 2007, State moved for final judgment; Defendant entered evidence he had complied with all conditions and the Judge dismissed the case.

First, the April Judgment was a final judgment, not a PJC, as the court issued conditions amounting to punishment. “Conditions amounting to punishment include fines and imprisonment. Conditions not amounting to punishment include requirements to obey the law, and a requirement to pay the costs of court."

Second, the March 2007 court had no authority to dismiss, as a final judgment can only be vacated by writ of habeas corpus or MAR.

March order vacated. Remanded to reinstate the April judgment.

Other Cases.

State v. Allen, (08-773). Detention: Appealing challenging DWI stop. Court found stop a reasonable investigatory stop. Information was based on tip received from face-to-face encounter with a victim from a fight (stating attacker fled in red car with a blonde-haired woman); this is much more reliable than an anonymous tip.

State v. Miller, (08-650). First, Defendant challenges admission of DVD of interview where officer's, in their questions, refer to statements of non-testifying third parties (each of which suggested Defendant's guilty). No error, as these statements were non-hearsay and only offered to show effect on Defendant and not unduly prejudicial under rule 403. Other jury instruction issues.

State v. Palmer, (08-633). In DWI case, district court issued order suppressing stop. DA appealed to superior court. The superior court found that the state failed to properly file an appeal because it didn't say it was filed within 10 days and found the appeal "void." State appeals and Court of Appeals exercises jurisdiction by writ. Reversed, noting the appeal was filed within 10 days and no requirement exists that it state on its face that it was filed within 10 days.

State v. Swann, (08-1195). No error in denial of motion to suppress DNA evidence (obtained by matching Defendant to samples already in possession from prior case) , even though it was previously ordered destroyed by a different Judge.

State v. Wilson, (08-782). Trial court denied Defendant offer of witnesses statement (recorded on tape) to a police officer, where the witnesses on the stand said she couldn't remember the event, nor giving the statement to police--even stating that she was a "mental patient" and she was liable to say anything. Defense offered the statement as a recorded recollection under 803(5). To lay foundation for a prior recorded recollection, you must establish that the witness cannot presently remember and made a recorded statement at a time when her memory was fresh. Here, no foundation that prior statement made when the fact was fresh in her mind, given her statements that she is "liable to say anything." As such, it is hearsay not within any exception and not admissible. No error on other jury instruction issues.

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