Sunday, September 20, 2009

Court of Appeals Update (Sept. 15, 2009)

Reversals and other cases of interest

State v. Lamont Derrell Carter. Search incident to arrest in automobile. Defendant arrested in vehicle for expired registration. Handcuffed and taken to curb, then car was searched. Officer found pieces of ripped paper, that, when put back together were incriminating. Held: Search violated Arizona v. Gant (2009) (first application of Gant). Under prior law (Belton), officer's could search the entire interior of a car incident to arrest when an occupant was arrested in a car. Gant changed this and limited Belton only to situations where the defendant is still in his car. Once the occupant is removed from the vehicle, the police cannot go back and perform a search incident to arrest. Because the search occurred while the defendant was cuffed and on the curb, it violated Gant. (Note: if police have probable cause to believe there is evidence of crime within a car, however, they may still search under automobile exception to the warrant requirement, which did not exist here). No plain view exception here, either, because the torn up pieces of paper were not immediate evidence of crime.

State v. Joseph Kevin Causby. Satellite-based monitoring. Trial court erred in ordering defendant be enrolled in satellite-based monitoring for prior sex offense, as state's evidence only showed defendant to be a "moderate" risk, not the highest possible level as required by statute.

State v. Charles Jerome Faulk. Statutory Rape- More than 4. Upheld statutory rape conviction. Under Gen. Stat. 14-27.7A, the "more than four" years provision is calculated by comparison of birth dates, not whole ages. Defendant, who was 19, was properly convicted of statutory rape of a 15 year old, where his birth date was 6/9/1987 and hers was 11/6/1991, making him exactly 4 years, 4 months, and 28 days older than her (i.e. more than 4 years older).

State v. Shannon Don Horton. Expert testimony on credibility. Trial court erred in (1) admitting clinical social worker testimony that victims are more credible when they provide specific details; (2) admitting clinical social worker testimony that child had more likely than not been abused, despite the absence of any physical evidence. No error in allowing expert testimony about grooming behavior, based on statements made to the social worker by the child. New trial.

State v. Mickey Vonrice Rollins. Plea with Appeal Conditions. Defendant made an alford plea to 1st degree murder, reserving right to appeal his denial of motions to suppress his statements (as marital communications and involuntary).

On his first appeal, the COA found that the court erred in suppressing his statements to his wife, as they were marital communications and to corrections officers as they were involuntary. The COA did not address two other claims on voluntariness.

The Supreme Court reversed on the marital communications issue (saying that there was no expectation of privacy when an inmate talks to his wife from jail) and remanded for consideration of the remaining issues. Holding on the marital communications stand. See blog post on this, here.

First, an order finally denying a motion to suppress may be reviewed upon appeal, even of a guilty plea (note: motions filed, but never ruled upon, are not). Second, when the appeal of a suppression issue is made a part of the plea agreement, defendant is entitled to the benefit of his bargain and is entitled to withdraw his plea. New trial.

Other Cases

State v. Robert Gregory Boyd. Defendant forfeited right to counsel by willful ostruction and refusal to cooperate with counsel. As such, no error in failing to conduct inquiry required by Gen. Stat. 15A-1242 to proceed pro se. Forfeiture, unlike waiver, does not need to be knowing and voluntary and does not require the inquiry.

State v. Lance Dylan Flint. Defendant challenged conviction (convicted of 68 felonies) based on lack of factual basis. Court found a lack of a basis on some. Judge Jackson dissented, on basis that defendant did not file a proper writ of certiorari.

Wednesday, September 2, 2009

Court of Appeals Update, Sept. 1, 2009

State v. Jihad Melvin, new trial ordered where judge submitted to the jury both 1st degree murder and accessory after the fact (and jury convicted on both). Plain error because the judge should have instructed on these as alternative verdicts. New trial.

State v. Mahamed Mohamud, plain error in instructing jury that "khat" was a Sch. I substance. Cathinone is a Sch. I substance, not "khat." New trial.

State v. Edward Wagoner, no error in ordering defendant to participate (12 years after his plea) in satelite-based monitoring. No violation of ex post factor rules, double jeopardy, or the defendant's plea bargain. Elmore dissents.