Wednesday, May 6, 2009

Court of Appeals Update, May 5, 2009

Opinions of Note / Reversals

State v. Norman, (08-1165). Hearsay Issue: In sex abuse case, judge refused to allow medical examiner to testify on cross that mother stated that the she didn't believe the child had been molested, as an 803(4) statement for purposes of medical diagnosis exception to hearsay. In order to be admissible under Rule 803(4), the testimony must meet a two-part inquiry: "(1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment." The court ruled that, even if a third party statement to medical personel could be admissible under this rule (without ruling on this issue), in this case there is no evidence that this statement reasonably pertinent to receiving a diagnosis or treatment as their is no evidence the child told the mother anything about this incident and the mother herself was under investigation by child protective services. Sufficiency of Evidence: Evidence sufficient to show anal penetration where child testified that Defendant stuck "his ding-a-ling in my back or my bottom. Sometimes he does it in the front." No error on other issues.

State v. Peele, (08-713) . Conviction overturned, stop should have been suppressed. In DWI case, Officer did not have reasonable, articulable suspicion necessary to conduct traffic stop where evidence of crime was an anonymous tip of unknown reliability and officer's observation of a single weave over a distance of .1 miles.

Other Decisions
State v. Dawkins, (08-1257). Sufficient evidence for jury to convict of 1st degree murder on felony murder theory.

State v. Hinton, (08-758). Defense failure to object constituted stipulation that out-of-state convictions were "substantially similar" to NC offenses.

State v. McKoy, (08-923). Defendant challenged indictment for Rape and Sex Offense, as indictment did not include the element "against another person" on its face and only used the victim's initials, RTB, with no periods. Court found that inclusion of this element was not necessary and that RTB was adequate to give notice of the alleged victim.

State v. Reaves, (08-1128). Defendant failed to preserve his 404(b) challenge, by not renewing his motion in limine when the evidence was offerred at trial. No prejudice due to sustained objections, where Defense eventually got the profferred evidence in through subsequent questioning. Sufficient evidence of sexual offense in testimony of child that privates entered her mouth, even though it was dark.

State v. Thomas, (08-515) . Trial court properly refused, in a rape case, to instruct on the lesser offense of assault on a female--as it is not a lesser included offense.

State v. Wilkerson, (08-819). Defendant challenged sufficiency of evidence in a 1st degree murder conviction where state's entire evidence consisted of his possessing the murder weapon three days after the murder and his motive and opportunity to commit the crime. Court found this as sufficient evidence.

State v. Young, (08-872). Sufficient evidence to convict of aid and abetting in 2nd degree murder case where: "the evidence presented at trial tended to show that Defendant drove Batiste to the neighborhood; stopped the vehicle in front of Douglas Mangum's residence with the headlights off; sped away from the scene after the shooting; threw the shell casing out of the car window; and dropped Batiste and the other passengers off in Cary, telling them to “get low ” or “get missing.” There was also evidence that the rifle used in the shooting belonged to Defendant, Defendant frequently kept the loaded rifle in the vehicle , and the vehicle was detailed before Defendant left town the next day. Further, the trial court heard testimony that Defendant and Batiste were “tight”; they were both members of the Crips; Defendant had a superior rank of “original gangster” to Batiste's low-rank of “foot soldier”; and Defendant knew that Batiste was planning to redeem his reputation that night in a neighborhood known as Bloods' territory."

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