Wednesday, December 9, 2009

Court of Appeals Update (Dec. 8, 2009)

Reversals and Remands and Other Interesting Cases.

State v. Belk. In B&E case, error to allow officer to testify that person in a surveillance video was the defendant, as that invaded the province of the jury. The officer had no first hand information. He just looked at the video and said, yep, that's him. Because he was in no better position than the jury to make that determination, the court erred in admitting that testimony. New trial.

State v. Clark. Error in not submitting assault as a lesser included of assault with a deadly weapon where the weapon was an automobile and the judge made no finding as a matter of law that a truck was a deadly weapon but rather submitted that question to the jury. "An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." Because the judge submitted that question to the jury, as a matter of law the judge found that the jury could have found it was not a deadly weapon. As such, the lesser included offense should have been included.

Also ordered trial court to hold a hearing on speedy trial issue.

New trial.

State v. Davison. Defendant convicted of attempted 1d sex offense and indecent liberties. Ordered to do life-time Satellite based monitoring (SBM). Trial court erred in finding this to be an "Aggravated Offense". In determining what counts as aggravated, the court must only consider the elements of the offense. An aggravated offense is one whose elements include an act of penetration with force or an act of penetration with a victim under 12 years old. Because he was convicted of attempt, rather than a completed act, this is not an aggravated offense. Vacated and remanded.

State v. Henderson. Despite stipulation to record level, state still had the burden to prove out-of-state convictions were "substantially similar" to NC offenses for record level points. Cannot stipulate to the question of law as to substantial similarity. New sentencing hearing ordered.

State v. Whitaker
. Held that crime of possession of firearm by felon was constitutional (no facial or as applied violation of 2nd Amendment, despite DC v. Heller, no as applied violation as this case is different than Britt and no ex post facto problem).

But, only one conviction possible where defendant simultaneously possesses multiple firearm.

Dissent by Elmore on ex post facto issue and urging that only felony offenses committed after 2004 could serve as predicate felony for firearm by felon conviction (when the possession of firearms prohibition was expanded to include possession in the home and thus became a punitive measure).

Other cases.

State v. Shockley
. Defendant given 4 breathalyzers. He blew .16 on the 1st, .15 on the 3rd. The 2nd and 4th he had inadequate breath. These breathalyzer results counted as "consecutively administered tests" as required by law as required under Gen. Stat. 20-139.1(b3).

State v. Williams
. No error in multiple convictions for robbery, sex assault, other assaults and kidnapping.

1) Assault with SBI: Serious bodily injury present for Assault causing SBI where scar over left eye caused permanent disfigurement

2) Assault by Strangulation: Variance between indictment (strangled by placing hands on throat) and testimony (strangled by putting foot against throat) was not fatal. Also, strangling by putting foot on throat counts; state does not have to prove victim had a hard time breathing.

3) Under Gen. Stat. 14-32.4(b) ("unless the conduct is covered under some other provision providing greater punishment..." assault by strangulation is a Class H felony) cannot be sentenced for the same assault for both Assault with SBI (class F) and Assault by Strangulation (Class H).

4) No DJ or other problem with conviction for Assault with SBI and 1d kidnapping--elevated due to serious injury, as serious injury and serious bodily injury are different elements (SBI requires more proof than SI).

“Serious bodily injury” is injury which “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.”

Serious injury has been defined as an injury which is serious, but falls short of death. State v. Jones, 258 N.C. 89, 91 (1962)

5) Insufficient evidence for a different county of Assault with SBI, there was no evidence of substantial risk of death or extreme pain.

6) Convictions for two counts of first-degree sex offense permissive in situation where defendant placed his fingers inside the vagina and rectum at the same time (different element in each count is the orifice).

State v. Veazey. License checkpoint valid as the programmatic purpose (motor vehicle law violations checks) was legitimate and the checkpoint was reasonable (minimal intrusion, etc.)

State v. Small. Convictions for assault and firing into occupied property

First, no discovery violation in failure of state to give up witness statement to prosecutor as it did not contain any significantly new or different information (see Gen. Stat. 15A-903(a)(1)).

The crime of "Discharging barreled weapon or firearm into occupied property," a Class E felony, has the following elements (Gen. Stat. 14-34.1)
  1. Willfully or wantonly
  2. Discharging any firearm or barreled weapon capable of discharging...missiles at 600 feet per second
  3. Into any building, structure, etc. that is occupied.
1) Where defendant shot a person outside home, bullets entered the home, and defendant knew other people were in the home, proper to use transferred intent to convict of crime of shooting into occupied dwelling.

2) The requirement of "600 feet per second" does not apply to firearms. The statute is properly read as "firearms" or "barrel weapon...600 feet per second", not "firearms or barreled weapon" that can send it "600 feet per second."

"Thus, the most logical interpretation is that the General Assembly was primarily concerned with the use of traditional firearms to shoot into occupied property but further recognized the potential for individuals to use non-traditional barreled weapons for this same purpose. Therefore, the legislature included the traditional firearm in the statute, but further included other barreled weapons that have a propensity to penetrate a structure and injure occupants."

State v. Stitt. Convicted of 1st degree murder, 2nd degree murder (different victim) and robbery. Defendant had no right of privacy in suppression context to cell phone records of phones stolen from the victim that were he later used to make calls on.

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