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.

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