Wednesday, November 18, 2009

Court of Appeals Update (November 17, 2009)

Not much to get excited about here...

State v. Price. In burglary case, during jury deliberations, the court received a hand-written note stating that the juror couldn't convict on circumstantial evidence alone. Judge gave an instruction that the law does not require direct proof and gave a reasonable doubt instruction from State v. Connor.

Later, the court received a second note that, "I cannot apply the law as explained by the judge's case. I request to be removed from the jury." Judge brought the jury out, said he couldn't remove any jurors and gave an Allen charge.

Held: No error in the trial courts to perform investigation into juror competency and no error in giving the Allen charge.

State v. Remley. No abuse of discretion in trial court ordering a recess as a remedy for the state's failure to provide discovery (the defendant's statement), rather than excluding the statement. Trial court did err in sentencing defnednat to 150 days for two Class 1, Level 2 misdemeanors (cannot sentence more than 2x the consecutive sentence, even if defendant is convicted of more than 2 misdemeanors).

State v. Washburn. No invasion of any legitimate expectation of privacy when a dog sniffs the common area of the storage facility, where officers present with consent of owner of the facility. Search proper where, based on the alert and an informants info, police got a search warrant and seized drugs from defendant's storage unit.

State v. Williams. No error in trial courts failure to intervene when DA closing.

No error in allowing eye-witness to testify that she saw defendant, despite the fact that she initially identified him in a "show-up" procedure (rather than a line-up or a photo array). The court relied on the fact that the police didn't set up the show-up; rather, the victim just came to the jail and happened to see him and said, "that's him." Because there was no state action in setting up the show-up, there was no taint.

No due process violation in photo arrays provided to other eye-witnesses, as they were not unduly suggestive.

No error in failure to include jury instruction on lessers.

No comments: