Monday, June 22, 2009

Supreme Court Update, June 18, 2009

State v. Abshire (535A08). COA reversed, conviction upheld. Conviction for failure to notify state of change of address for sex offender registry. Law requires written notice of a change of address within 10 days. Defendant 1st reported in October of 2001 and reported 13 changes since that time. State's evidence consisted of a statement of a person at the reported address saying that Defendant did not live there, but was only "in and out" and received USPS mail there. Defendant had gotten into a fight and moved in with his parents for, according to his parents, two weeks, but was planning to return to his other address when things cooled off. Held. Address is not just where one receives mail, but the actual place of abode, whether permanent or temporary. Here, temporary change of abode for more than 10 days, so changed address and guilty. Court refused to apply the lenity doctrine, finding that the meaning of address was clear. Court of appeals decision, reversing conviction, reversed. (See original post of COA decision.)

State v. Alston, (558A08). Per curiam affirmed. See post on lower court decision, on issue of constructive possession, here.

State v. Icard
(236A08). Trial court erred in denying motion to dismiss. Defendant was removed from a truck, ordered to bring her purse, and placed in a police car to be questioned. During questioning, the Officer asked to see what was in her purse. Defendant handed the officer her purse. It was searched and contained drugs. Held: Fruit of the search must be suppressed as the product of an illegal seizure. The officers actions in ordering her out of her car and into his for questioning was a seizure, for which he did not have probable cause. Here, the Officers actions in
initiating the encounter, informing the defednant he was investigating drugs and prostitution, call for backup, persistence after defendant failed to responds to his original requests, request that the Defendant produce ID, and request that the Defendant exit the vehicle and bring her purse constituted a seizure, as a reasonable person would not feel free to leave.

Justice Newby Dissented.

State v. Maness, (402A06). After an hour and forty minutes of deliberation, the jury came back with a life verdict. During polling, however, 7 jurors indicated that they did not agree with that verdict. During this process, people in the audience were crying and cheering. The Judge found that he had to order more deliberations and denied defense motion for a mistrial. About an hour later, the jury came back with a unanimous verdict for death. Defense renewed its motion for a mistrial, based on the emotional response. While the trial court erred in believing it did not have authority to impose a life sentence, it did not commit error by requiring more negotiations. Hudson dissented.

State v. Ramos, (535A08). COA decision affirmed, granting new trial, where Court failed to instruct on the element of willfullness. (See post on COA decision).

Thursday, June 18, 2009

Court of Appeals Decisions, June 16, 2009

A pretty uninteresting lot...

State v. Bare, (08-818). Defendant challenges enrollment in Satelite Based Monitoring (SBM) based on his conviction for indecent liberties with a minor in 1998, years before passage of the law to SBM sex offenders, as an ex post facto law. Ex post facto forbids applying new crimes or enhanced punishments to actions already committed--basically on notice grounds. Defendant arguees that SBM inflicts a greater punishment than the law that made his conduct a crime when committed.

The Court found the purpose of the law was not to punish, but rather to regulate and protect, and as such is not an ex post facto violation. (eds note: yeah, right).

State v. Garcia, (08-1312). Issue: Whether officers had reasonable suspicion to stop based on a tip. Answer: Yes, because they sufficiently corroborated the anonymous tip. The anonymous informant called and said Marijuana was stored and sold at a particular residence. The resident of that address had a lengthy history of "police contact, including suspicion of narcotics and firearms offenses." Police conducted surveillance and saw two men frequently run in and out of the house from their cars, go into a shed behind the back, and return to the cars. The men carried bags. Here, this was sufficient corroboration to give rise to reasonable suspicion to conduct a Terry stop.

State v. Goode, (08-1145). No IAC in lawyer arguing to jury client is only guilty of 2nd and not 1st degree murder, despite claim by client that this was without consent, where judge directly addressed the client on this issue on the record. No error on failure to hold competency hearing where actions of defendant's counsel waived such hearing. No error on other issues.

State v. Largent, (08-1108). Claim by surety appealing denial of motion to set aside bond forfeiture. Motion made on basis that Defendant was incarcerated in another state and that was why he failed to appear. However, notice of this basis was untimely, as the DA must be notified while the Defendant is still incarcerated.

State v. Worley, (08-1532). No error in conviction for willful failure to change address for registered sex offender (sentenced to 107 to 138 months).

On 9/14/04, Defendant reports his address at Candler Knob.

On 5/19/04, Defendent submits a change of address back to living with a friend in public housing, as he had been evicted. A Detective infomed the Housing Authority that Defendant was living there, and the housing authority threatened to evict his friend unless the sex offender moved out.

On 8/10/05, Defendant and his friend were evicted from public housing.

On 9/16/05, Defendant submitted a change of address saying he moved back to Candler Knob.

Under the law, a sex offender must submit a new address within 10 days. Defendant took 36 days to submit a new address. He claims this was because he lacked a residence and was "drifting." The Court said he should have reported wherever he actually was, therefore the conviction was valid.

(Ed note: this is really crazy. So, this semi-homeless guy who bounces around, gets evicted because the police tell the Housing Authority he is there and get him evicted. 36 days later, he finds a new place and submits his address, and they lock him up for 10 years for not reporting his address (or rather, reporting it 26 days late). That is an incredible waste of resources to lock this guy up for 10 years. I'm not sure the court got it wrong, but I am sure our legislature did.)

Wednesday, June 17, 2009

New Trial Ordered for David Gainey


Superior Court Judge Gregory Weeks granted a new trial to David Gainey, removing him from death row. The Judge found that the prosecution had withheld evidence from the defense that suggests that another person committed the murder and that his original trial counsel inadequately investigated certain aspects of the case.

Monday, June 8, 2009

Article on Habitual Felon

Studies show repeal of habitual felon law would save $190 million over 5 years in North Carolina, but, like all serious criminal justice reform, it will never be repealed because its the third rail of NC politics: being "soft" on crime.

See N&O article, here.

Thursday, June 4, 2009

Court of Appeals Update, June 2, 2009

Reversals or Other Decisions of Note

State v. Black, (08-1009). Probation revocation vacated. Trial court lacked jurisdiction because hearing held after probation expired and State failed to follow the requirements of 15A-1334(f). Under 15A-1334(f), to revoke after expiration, the state must have filed a motion before expiration and make reasonable efforts to notify the Defendant of it's intent to revoke. Here, the State did not make reasonable efforts merely by issuing a warrant and transferring his case to a surveillance officer. This is enough if the Defendant is an absconder, but here the trial court made findings that he was not an absconder. Because the State didn't make reasonable efforts, there was no jurisdiction. Note. 15A-1344(g) was amended effective 12/1/08 doing away with the requirement of reasonable efforts, so this decision has little future value.

Other Cases

State v. Crocker, (08-1363). 1st, Evidence sufficient for sex offense, evidence of penetration was child's statement that she was touched "where she pees" and that she felt faint and Doctor's testimony that description of feeling faint and pain is more consistent with touching inner labia (i.e. penetration) than outer. 2nd, no reversible error where medical expert offered an opinion on truthfulness of the minor (generally forbidden) because it was offered in response to a defense question.

"Did you ever ask her _ I guess, did you ever ask her if she was telling you the truth?" Witness: "I did not specifically ask her. I felt like what she was telling me was the truth."

State v. Dalton, (08-873). No error where state failed to give 10 days notice of intent to submit grossly aggravating factors, in a DWI case, required under 20-179(a1)(1), because the provisions effective date is after the Defendant committed the DWI.

State v. McGee, (08-1285). The fact that the principle pleads guilty to a lesser offense, does not prevent another from being charged and convicted for accessory after the fact to the greater, originally charged offense.

State v. Via, (08-1147). Defendant appealed, interlocutory, a motion to suppress. Court granted writ, but affirmed denial. Part of Defendant's argument was that the state shouldn't have been allowed to appeal the District Court's grant of the motion to suppress to Superior Court (which reversed). The Court Appeals found no problem with that interlocutory appeal to Superior Court.

State v. Wallace, (08-1429). No error in instructing jury in disjunctive thories for AWDWISI, where substantial evidence was presented on both theories.