Sunday, August 16, 2009

Court of Appeals Criminal Decisions (August 4, 2009)

Reversals and Resentencings

State v. Davis. Court found defendant could not be convicted of both involuntary manslaughter and felony death by vehicle arising from the same death, nor could he be convicted of both felony death by vehicle and DWI arising from the same incident.

First, under Double Jeopardy, you cannot be convicted twice for the "same offense"--defined as two offenses that do not EACH contain an additional element not found in the other offense.

Involuntary manslaughter elements are: (1) accidential killing, caused by (2a) unlawful act not amounting to a felony and not ordinarily dangerous or (2b) culpable negligence.

Felony Death by vehicle elements are: (1) accidental killing, while (2) driving impaired.

The court ruled that these were not the same offenses because manslaughter requires proof of culpable negligence which does not have to be while driving and felony death by vehicle requires proof of driving while impaired. (ed. note This is silly though, given that driving while impaired will always be culpable negligence and conviction for felony death by vehicle will ALWAYS result in conviction for manslaught...)

However, under the Blockbuster Test (which allows multiple punishment for two offenses, even if they are included within one another, if they are tried at the same time and the legislature so intended), the NCGA did not intend for persons to be sentenced for both these charges. As such, while you can be convicted for both, you cannot be sentenced for both.

Second, under double jeapardy, driving while intoxicated is a lesser included offense of felony death by vehicle. As such, Defendant could not be convicted of both. If the lower court vacates on voluntary manslaughter and sentences for felony death by vehicle, then it must arrest judgment on DWI.

Remanded for resentencing.

Other Cases

State v. Bohler. Defendant challenges his sentencing (based on 12 points), saying that the court counted charges for out-of-state convictions that had not been properly been shown to be "substantially similar" to NC crimes. Trial court erred in assessing 12 points; should have assessed 10, but that makes no difference. Still level IV, so sentence sticks.

State v. Hargrave. No error in allowing (in a PWISD Cocaine case) officers to offer lay opinion that the way the cocaine was packaged and the amount of money on defendant was indicative of a drug sale. Here, such testimony was relevant, based on personal knowledge, and helpful to the jury--thus an appropriate lay opinion.

No error allowing a lab technician testify as an expert that the substance seized was cocaine, despite her lack of higher degrees.

No error in permitting prior sales, as they were similar (involved same parties, at same place, and same type of drug) or admitted subsequent DWLR in proving knowledge or revocation on prior charge of DWLR (ed. note: how DWLR later shows you knew your license was revoked when you drove before is beyond me, but frankly, NC 404(b) law is beyond me...)

No 8th Amendment excessive punishment violation (10 years for conviction of selling cocaine, DWLR, PWISD cocaine, giving a false name to an officer, and habitual felon...)

State v. Hunt
. Defendant tried in 1st degree murder case. Facts are that Defendant fired into a car and killed an enemy. Issue at trial was whether this was in self-defense or a lesser homicide.

State proceeded on p&d theory as well as felony murder (underlying felony of firing into an occupied car). 1st, no error to allow state to proceed on felony murder theory, despite defense claims that it undermined his argument for voluntary manslaughter or self-defense.

Decision of jury was not "out of term," as judges announcement that it was recessing, without objection of the defendant, created substantial compliance with 15-167 (statute on extending jury term.)

No error in polling the jury on all offenses at once, rather than seperately on each offense.

No error in failing to strike the jury panel after a prospective juror stated that there was "too much gunplay" in Durham.

No error in using short-form indictment for first degree murder.

State v. Keller. Court erred in accepting plea and sentencing Defendant for both 2nd degree murder and accessory after the fact to 1st degree murder, as the two offenses are mutually exclusive, and their was no factual basis for plea to kidnapping, as evidence only suggested that Defendant moved a body, not a living person, which is not kidnapping.

Guilty plea vacated and remanded for trial.

State v. Lowry. Sufficient evidence of 1st degree murder, where evidence of motive, opportunity, and possession of items belonging to the victim shortly after the murder.

State v. Potter. First, Defendant challenges conviction for both robbery with a dangerous weapon and misdemeanor assault on a female. This argument was not properly before the court, so no ruling.

Second, Defendant argues IAC for failure to object to submission of misdemeanor assualt to the jury. Court refused to address and said this was more proper subject of an MAR.

State v. Rainey. No error in admitting taped calls Defendant made from jail (defendant argued it was unduly prejudicial, hearsay, and violated the confrontation clause.) Photo array was not overly suggestive where other persons in the photos were not close in age to the Defendant and he was the only one wearing a red shirt and that both witnesses were shown the same line-up with the Defendant's picture in the same order.

Defendant challenges discovery violation state's failure to provide his statement "I hope this spic is dead," to which a detective testified to on direct. The officer's notes did say, "they hated Mexicans." This was adequate notice of the statement.

Defendant challenges admission of his prior failure to appear in 2006 on this case under 403. Flight is admissible of evidence of guilty. No error.

Defendant challenged admission of 404(b) evidence of a prior drunken fight he got in at a mobile home. This was similar to the current charge in a "particular fighting style"--fighting alongside another person, showing defendant's method of operation. Further, the same individuals were present and drugs and alcohol were involved in both fights. (Here, during a drunken party, Defendant and some others beat up and robbed another man in a preplanned robbery).

State v. Rawlinson. Superior court had authority to try misdemanor where it was based on the same transaction or occurance as a felony.

Sufficient evidence of non-consent for breaking and entering where defendant entered a public video store, but then entered a back office. Implied consent exists to enter the store, but not the office, as it was not held out to the public in the same way as the store.

State v. Watterson. Defendant challenges conviction for possession of weapons of mass destruction, arguing that the jury was not instructed on essential element: that Defendant knew that a saw-off shotgun was unlawful. However, knowing possession is a violation of the law, even if the Defendant did not know they were unlawful to possess.

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