Wednesday, October 21, 2009

Court of Appeals Update (10/20/2009)

Reversals and other interesting issues.

State v. Galindo. Melendez-Diaz. Applying the new high court's decision in Melendez-Diaz (2009), the court found that a lab supervisor's testimony, based solely on a hearsay lab report of another analyst, violated the confrontation clause.

Less interesting cases.

State v. Carrouthers. Trial court suppressed evidence. Case remanded for findings as to whether the officer's handcuffing of the defendant constituted arrest or simply an investigative stop. (It would be investigative if handcuffing was the least intrusive means reasonably necessary to carry out the stop, even if the defendant didn't feel free to leave once handcuffed.)

State v. Magnino. No constitutional separation of powers issue in Gen. Stat. 20-38.6(f) provision that district court to only rule preliminarily on suppression issues in implied consent cases (by driving on the roads, you give your implied consent to be tested if officers believe you are DWI), subject to appeal to Superior Court by the state.

State v. Rackley. No right of the appeal for the state to COA on Superior Court affirmance of district court suppression in an implied consent case.

Saturday, October 10, 2009

Supreme Court Update (10/9/2009)

Cases from NC Supreme Court released 10/9/2009.

State v. Bobby E. Bowden. Digged. See post on Bowden here.

State v. Roger Earl Coley. Per curiam aff'd. See post on Coley here.

State v. Lloyd Green, Jr. Per curiam aff'd. See post on Green here.

Wednesday, October 7, 2009

Court of Appeals Update (Oct. 6, 2009)

Reversals and other interesting issues.

State v. Asia Niangel Springs. Judicial comment. Judges stated during a witness testimony that "Let's move on to another area. He has no involvement with these charges." Appellant argued that this tended to discredit the defense theory that the witness was involved with the charges. The court found that this statement was an impermissible opinion. New Trial. Double Jeopardy. DJ does not prevent conviction for PWISD marijuana and felony possession of marijuana (more than 1.5 oz).

State v. Stephen Jack Stines. Satelite based monitoring. Prehearing notice required of basis of determination that defendant qualifies for SBM required by due process.

Other cases.

State v. Joshua Earl Anderson. In murder case, no error in admitting a demonstration of shaken baby syndrome.

In closing, prosecutor pointed out that, in their opening, the defense said they were going to put on evidence of mental retardation, then didn't, saying, "“[T]here is nothing to preclude the defense from putting on evidence, evidence like you heard in jury selection, you were going to hear that he was mentally retarded. See that’s about broken promises. Broken promises from the defense.”" While the court stated "We do not condone in any respect the State’s use of the term “broken promises” in its closing argument," it nonetheless condoned it by finding such error harmless and noted that "When defendant forecasts evidence in the opening statement, the State is permitted to comment upon the lack of evidence supporting such a forecast in closing argument."

No error in submitting (non-capital) aggravating factors and guilt/innocence on same verdict sheet.

State v. Shawn Dupree Corpening. Officer walked up to a car that stopped 100 feet before a checkpoint. Smelled marijuana and conducted a warrantless search. Court found that the plain smell gave probable cause, allowing the warrantless search of the car. Defendant argued that the checkpoint was illegal, but the court ruled that this was irrelevant as the defendant stopped of his own free will before the checkpoint.

State v. Ricky Sylvester Graham. 404(b) evidence of 1995 assault by defendant upon the victim, his estranged wife, was relevant in a prosecution for a 1st degree murder of the victim in 1996. Easy 404(b) decision, as it was the same victim and state's theory was that that victim was killed to prevent testimony in the 1995 case. Properly admitted to show motive, malice, hatred (?), ill-will, and intent.

No error in allowing state to present evidence, despite it's failure to preserve other evidence. Defendant's car was impounded in 1996, then subsequently lost. The state did preserve some soil samples and presented them at trial. As no bad faith was shown, there is no problem with the state presenting this evidence, despite it's losing the more complete body of evidence.

No error in failing to intervene ex mero motu to prosecutor's closing argument that: "An innocent man, I contend . . . would cooperate with the police." and "Remember please, that the defendant chose to put on evidence. If there was really a question about those phone calls, they could have called whoever’s name was on these phone records, but they didn’t. And that tells you something" as these were not direct references to defendant's failure to testify. Rather, these were comments on defendant's failure to produce evidence or refute evidence presented by the state. (is that the defenses burden, now?)

No prejudicial error caused by pre-indictment delay of 1st degree murder indictment.

State v. Joseph Dwayne Morrow. Court ruled that (1) SBM may be ordered even if the DOC assessed the defendant as a moderate risk if there is other evidence to support the conclusion that the highest level is needed; (2) the trial court erred in imposing an indefinite period of time for the SBM (7 to 10 years) and must impose a definite time; and (3) SBM does not violate the ex post facto clause (citing State v. Bare)

Judge Elmore dissented on issue 3.