Friday, July 31, 2009

July 21, 2009 Court of Appeals Decisions


State v. Kilby. Defendant imposition (under law that came out after his conviction) of satellite-based monitoring for 5-10 years. To impose SBM, the Court must find that Defendant was convicted of an enumerated offense and that the Defendant requires the "highest possible level of supervision and monitoring" (or find that he is guilty of certain prior offenses that mandate SBM for life). In making the determination, they must look at the DOC risk assessment.

Here, DOC risk assessment found Defendant posed a "moderate risk." There was nothing else in the record, so the Court's finding that he required the "highest possible level of supervision" is unsupported in the record.

As such, the case is not remanded, but reversed and Defendant need not be subject to SBM.

State v. Morton. Reversing denial of suppression motion. Police had been informed by a CI that Defendant may have been involved in a drive by shooting and other CIs said he was selling drugs. The officer couldn't remember exactly when the CIs said this, but he was rumored to be drug dealing. When officers approached Defendant on the street, he began almost to jog towards his grandmothers house and was so nervous he couldn't get the key in the front door.

The Officers approached and told him they needed to talk with him. They patted him down and felt a "hard rectangular object", based on training to be a digital scale. They arrested the Defendant for paraphernalia and, upon complete search, found crack.

While stop was ok, the frisk was not. There was no reasonable, articulable suspicion that defendant was armed and dangerous. Nothing to support CI statements were reliable and no objective facts to suggest cops were in danger.


State v. Payton. Defendant convicted of burglary, where evidence mainly consisted of a fingerprint found at the scene.

No error in courts refusal to instruct, as requested by Defendant, that the jury not convict if they do not find beyond a reasonable doubt that Defendant left the fingerprint at the time of the burglary. The Judge must issue instructions at Defendant's request if they are correct statements of law and supported by the evidence. This instruction was not supported by the evidence, as there was other evidence, in addition to the fingerprint (albeit weak) that could inform the juries decision (thus, even if didn't find the fingerprint was left by Defendant beyond a reasonable doubt, could still convict).

Defendant challenges his conviction for Armed Robbery and Kidnapping. To convict on both, the jury must find seperate acts of restraint, beyond that inherent in an armed robbery. Here, Defendant ordered the victims at gunpoint to enter the bathroom and lie down. This was not a act of restraint seperate from the robbery (compared with cases where victims were bound or moved to a different room to prevent notice by outsiders), and did not constitute kidnapping.

Remanded for resentencing on armed robbery alone.


State v. Carter. Sufficient evidence of rape and statutory rape where victim testified that it occurred (and Defendant confessed). Error in failing to conduct jurors to court room, where they asked during deliberation to see certain statements, but error was not prejudicial.

State v. Harris. In PWISD Cocaine, challenge under 404(b) to admission of prior arrest for same offense. At first trial, in 2007, Judge Frye kept the evidence out under 404(b) and the jury deadlocked (on an interesting note, Defendant represented himself!). At the subsequent trial, Judge DeRamus allowed it in (Defendant was asked his position on this and he said, "It don't have nothing to do with this case." -- as good a 404(b) argument as I can imagine...) Despite's defendant's pro se objection, the Court analyzed this under plain error.

Held it was not plain error to admit the 404(b) evidence as no estoppel doctrine to evidentiary ruling (verdicts only) (i.e. DeRamus was not bound by Frye's prior ruling).

State v. Rouse. On appeal, Defendant challenges his conviction for assault inflicting serious bodily injury.

“Serious bodily injury” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.

The trial court, however, only instructed on a permanent or protracted condition that causes extreme pain, so this is the only theory the jury could rightfully convict on. The victim here had dried blood on her face, bruising in her head, a shoulder bruise that made it difficult to move, cuts on her hand, and a broken collarbone. This was sufficient evidence for a serious bodily injury finding.

State v. Troy. Sole issue in this 1st degree murder appeal, was whether the trial court erred in denying motion to suppress calls made from jail. The trial court ruled that Defendant impliedly consented to the taping because he was warned that any call made would be taped. NC law, like federal law, requires one-party consent to record conversations (some states require consent of all parties). The warning at the beginning of jail calls that the call will be recorded put the Defendant on notice and creates his implied 1-party consent. Here, Defendant's testimony that he failed to hear the warning and the fact that 2 of the calls were "three-way" calls makes no difference. The warning was given and that creates consent.

State v. Wade. Stop of car was not illegal, where parents of the owner had called police to report their son (who is white) missing and officer saw the car and saw it was being driven by a black man (with a white man in the back seat). A brief stop to investigate was warranted.

State v. Worley. Originally published June 16, 2009. Depublished. Then republished. See original blog on it, here.

Jury returns sentence of life

The jury returned a life verdict yesterday in the case of Myron Britt in Fayetteville. They returned a verdict of guilty on Tuesday and heard evidence from his children on Wednesday. They deliberated 40 minutes before returning their verdict.

See story here.

Sunday, July 12, 2009

Steven Storch

I saw this, a different kind of candidate for District Court Judge in Durham County. Check out his website. Pretty interesting guy.

Friday, July 10, 2009

Capital Trials Underway

The Bladen County, the capital murder trial of John Hester began Wednesday Morning after two months of jury selection. He is charged with stabbing a man to death. See press here.

In Robeson County, the capital murder trial of Myron Britt continues. He is accused of shooting his wife. He was previously tried in 2006 and the jury was unable to reach a verdict on guilt. He has been incarcerated over six years awaiting this trial.

Wednesday, July 8, 2009

Former Basketball Star Charged With First Degree Murder

James Richardson, a former Rose High School basketball star--who went on to play professional ball overseas--was charged with killing two white ECU students on 5th Street (the college bar area) of Greenville.

Allegedly, Richardson had a dispute with staff there, left, and returned opening fire from a car.

Given the two white victims, there is a good chance this case will be prosecuted Capitally.

Tuesday, July 7, 2009

NC Court of Appeals Decisions (July 7, 2009)

All decisions available here.


State v. Ray. Reversal of conviction in child sex assault case. First, state improperly was allowed to question Defendant about prior incidents of domestic violence from the early 1990s between him and his former girlfriend. The trial court allowed this evidence in under 404(b) as evidence of intent and motive. State argued it was relevant to this because Defendant had been drinking in both the prior and current charge and both charges involved a female.

First, the state failed to show that Defendant committed the prior assaults while under the influence of alcohol. Second, the prior instances involved relationship conflict, whereas this one involved sex assault to a minor. These charges are just not similar enough to be relevant to intent.

Because this case was largely Defendant's word versus the minor's word, credibility was key. As such, admission of this evidence was prejudicial.

State v. Streater. New trial ordered on charge of sex offense. Doctor's testimony was misleading, as it suggested that the victim identified the defendant as the perpetrator, when really she used vague references. Further, the doctor rendered an impermissible opinion by stating that the lack of injury he noted to the victim's orafice was consistent with her reported history of sexual abuse. Basically, the only evidence of the sex offense was the victim's statement; this expert testimony impermissibly suggested that evidence was truth, even though no physical evidence supported it.

Also, error to allow victim to testify that she had just testified truthfully, where her truthfullness had not been attacked on cross.

Other Cases:

State v. Anderson. Defendant was released for sex crimes against a child. He was subsequently ordered to be monitored by satellite for the rest of his life. Denied, largely citing Bare.

State v. Black. Defendant challenges an officer's testimony, who testified after hearing an audio and reading a transcript of his prior police interview, arguing that such items were not proper recorded recollections or properly offered to refresh. Generally, anything can be used to refresh a recollection, but a proper foundation must be laid showing that: the witness did not remember something (not that they merely said something different than expected; they must say, "I don't remember"), that the thing refreshes recollection, and the witness now has a present, independent recollection. Here, foundation was adequately laid, as the witness stated that hearing the audio did refresh his memory to "certain aspects of the case." The appellant apparently suggested in its pleadings that the trial court made statements badgering the witness to be refreshed, but, unfortunately, any such statements from the bench are not included in the order. Other issues not properly raised or raised only for preservation.

State v. Cloer. Defendant, who admitted a probation violation, could not properly raise issues of the amount of CTS he was awarded, as it is not an appeal of right in that situation. The appropriate remedy is filing an MAR.

State v. Levall Davis. Defendant stole the dock, but not the "brain" of a car DVD player that retails for $1,300. Only issue on appeal is if the property was valued at $1,000. To be guilty of felony possession of stolen goods, the state must show the fair market value of the property is $1,000. Court found that the dock was worth $1,300, even though the evidence showed the dock was essentially non-functional and had no value without the brains. Why? "Here, the jury could have reasonably concluded that the value of the DVD player deck defendant possessed was worth over $1,000.00 based on Putney’s testimony that the entire system retails in his
store for over $1,300.00."

Pretty silly, huh? Does anyone really think that you could sell the used dock and not the brains of a $1,300 DVD player for $1000? Me neither...

State v. James Davis. Case involves a drunk driver who veered off the road, hit someone and killed them. Found guilty of DWI, reckless driving, SBI by MV, ASBI by MV, two counts of felony death by motor vehicle, and two counts of 2nd degree murder.

Defendant challenges the 2nd Degree Murder conviction, claiming no showing of malice. Malice here where Defendant had a BAC of .13 and hit a sign and kept driving, even after he should have known he was a danger to others. Malice found despite defendant only traveling at 46 mph.

Defendant cannot raise his double jeopardy claims, that felony death by vehicle and felony serious injury by vehicle, as they were not raised at trial.

State v. Hubbard. Defendant violated terms of his probation to report at curfew "in a reasonable manner," when officers found him drunk in his home after curfew.

State v. Lark. Sufficient evidence of sex offense in child's testimony about even. In jury instruction, judge mispoke and said Defendant is accused of "performing fellatio" on the minor, rather than the actual charge of forcing the minor to perform fellatio on him. No error, as judge said it right two other times.

No error in admitting expert testimony that the minor now had PTSD, as such can be admitted for "corroborative purposes." Here, no limiting instruction was given to that effect. No error, as counsel did not request such a limiting instruction.

State v. Maduras. Challenging admission, under 404(b), in assault on officer case, of prior domestic violence incidents involving defendant. No error, as this information was "necessary to provide a complete picture for the jury" (i.e. explain surrounding events).

State v. McClary. Defendant convicted for taking an indecent liberty with a minor, by giving her a note saying (in colorful language) that he wanted to have sex with her.

"A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either: (1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of gratifying sexual desire[.]" N.C.G.S. 14-202.1

Because the letter overtly solicits sexual acts, it meets the standard under the statute.

No prejudice in the admission of another letter defendant gave a different child.

State v. McLeod. Felony possession of firearm conviction remanded for new trial. Found defendant "consented" to a search by admitting to an officer that he owned a gun and where it was in the house in response to police questions. But, remanded for new trial, as court allowed Defendant to fire counsel and proceed pro se in the middle of the trial without making proper inquiries.

State v. Miller. Officer made reasonable investigative seizure of Defendant where, during traffic stop, Defendant kept his hand clenched and officer believed it might contain a weapon (it contained drugs; when officer said, "open your hand," Defendant backed up and the officer hit him with a nightstick).

State v. Porter. Defendant guilty of common law robbery where: took box of shoes, once outside a store confronted by manager, put down the box, assaulted the manager, and then fled the scene without the shoes. The court found that it was all part of a continuous transaction and found that neither order of the theft and assault, nor the fact that he abandoned the goods negated a finding of guilt.

State v. Rivens. No error in denying motion to suppress, finding Defendant consented to search on these facts:

"Officer Correa told defendant that he was investigating a report of gunshots. Officer Correa asked defendant if he had anything on him that Officer Correa should know about, and defendant responded that he did not. Officer Correa continued, asking defendant whether he had been smoking marijuana, and defendant did not respond. Officer Correa asked for defendant’s consent to be searched. Defendant said, “Go ahead,” and he raised his arms over his head. During this search, Officer Correa did not find a gun, but he did find a small bag in defendant’s pocket which held four smaller baggies, each containing what appeared to be a rock of cocaine."

State v. Yarborough. Jury found Defendant guilty of kidnapping, burglary, and 1st degree murder.

Finding it a legal impossibility of being guilty of felony murder, where the underlying felony murder was kidnapping with specific purpose to commit murder (to be guilty of kidnapping, you must confine someone with purpose of comitting a felony; if the underlying felony is kidnapping is murder, then not felony murder and still have to prove p&d--which they couldn't here). However, Defendant did commit underlying crime of burglary, so 1st degree murder conviction sand.

No kidnapping here, as state couldn't show specific intent to confine for purpose of committing a felony (murder), as no specific intent to commit murder.

Wednesday, July 1, 2009

Racial Justice Act Moves Through the House

The Racial Justice Act, a bill that would allow Defendant to challenge their death sentence (or pre-trial death certification) on basis that the District Attorney or the Jury improperly used the race of the victim or the defendant in making their decision, passed the House J-I committee yesterday. There are only a few steps remaining for it to become law.

Click here for a great article on its passage.