Saturday, January 30, 2010

Supreme Court Update (Jan. 29, 2010)

State v. Moore. Defendant and his wife were working a fruit stand when a man grabbed the cash box. The man started physically fighting with the wife during the struggle. The man backed away, then approached again with his hand in his pocket. The defendant's wife screamed for his help, so he came over and shot the thief. Defendant testified that he wasn't going to "wait to see no gun." It turned out the dead guy wasn't armed. Court refused to instruct the jury on self-defense and defense of others. Jury found him guilty of voluntary manslaughter. Held: The trial court should have given the self-defense instruction. Reversed the COA. New trial.



Wednesday, January 20, 2010

Court of Appeals Update (Jan. 19, 2010)

Reversals and Other Interesting Cases

State v. Fletcher. Held: Exigent circumstances exist in DWI investigation to compel a blood test to determine intoxication, based on evanescant evidence, as long as probable cause exists (if you wait for a court order, the liver will do it's thing and the evidence of a DWI is gone). Court made some noise that this was special because it was the weekend and the magistrate's office was far away, but the effect is this--if the drunk refuses, the cop can force it.

State v. Jacobs
. Trial court, rather than jury, found four aggravating factors: that defendant Jacobs (I) induced others to participate in the commission of the offense, (II) joined with more than one other person in committing the offense and was not charged with conspiracy, (III) took advantage of a position of trust or confidence to commit the offense, and (IV) committed the offenses against a physically infirm victim. Found that, as to I and IV, these were not harmless error and remanded for resentencing.

Other Cases:

State v. Neville
. The defendant failed to preserve for appellate review the sufficiency of evidence to support the conviction of second-degree murder, but, even if he had preserved it, there was sufficient evidence.

State v. Rahaman. No double jeopardy problem where, in first trial, trial court erroneously instructed the jury on possession of a stolen motor vehicle, rather than possession of stolen goods, as the error did not amount to an acquittal of that offense.

State v. Salvetti. Defendant pleaded to felony child abuse as part of package deal (he gets the E felony and his wife gets lessers). Two days later, he tried to withdraw it, which was denied.

1) Trial court failed to inform him of his rights under 15A-1022 (right to remain silent, maximum possible sentence, if pleaded guilty, would be treated as guilty, etc.). Failure to comply with 15A-1022 does not require relief. Must show prejudice; defendant has not.

2) Package deal was not an improper inducement. Threatening to prosecutor others is not an improper threat as long as such charges are supported by the facts. Because wife's charges were supported by the facts, no improper inducement.

3) Denial of motion to withdraw the plea was not error. Right to withdraw plea if "necessary to avoid manifest injustice." Factors are: if defendant had counsel, if defendant asserts innocence, and whether the plea was made knowingly and voluntarily. Here, defendant asserts his innocence, but this fails because it was an Alford, not a guilty plea. Last, he asserts the short time--2 days--before the attempted withdrawal. This is inappropriate and only a relevant factor pre-sentencing.

State v. Simonovich. No error in refusing to submit voluntary manslaughter as victim's sexual taunting was legally inadquate provocation.

Defendant was in bed with his wife, when she discussed her prior infidelities (of which he was aware), said she was going to keep cheating, and told him she had spent their life savings. Court ruled this legally inadequate--not even an issue for jury consideration.

State v. Wheeler. Defendant, who was proceeding pro se, during jury selection asked to have his standby counsel take over. After selection, he moved to proceed pro se and this request was denied. Held no error, as defendant waived his right to proceed pro se by requesting the lawyer to take over during jury selection.



Wednesday, January 6, 2010

Court of Appeals Update (Jan. 5, 2010)

Reversals and other interesting cases.

State v. Hensley. Officer, while defendant was in hospital, asked defendant to cooperate and asked him incriminating questions. Held: This was a Miranda interrogation, without warning, as the conduct was reasonably likely to elicit an incriminating statement.

State v. Mumford. In automobile accident case, defendant charged with DWI and 5 counts of felony serious injury by vehicle. The jury acquitted on DWI, but convicted on the felony serious injury by vehicle. Defendant objected at trial on grounds of inconsistent verdicts.

1) Defendant failed to preserve double jeopardy issue, as he only objected on inconsistent verdicts grounds;

2) Overturned on inconsistent verdicts. Verdict, even verdicts that appear inconsistent, are not inconsistent if there is sufficient evidence to convict adduced at trial. However, where the two verdict require the jury to find mutually contradictory legal elements, however, defendant is entitled to relief. Here, the verdict is logically inconsistent and legally contrary. An element of felony serious injury by vehicle, Gen. Stat. 20-141.4(a4) requires that the driver cause serious injury while "engaged in the offense of impaired driving." Here, the two verdicts are logically inconsistent. Five vehicle injury convictions vacated.

Also vacated restitution of $228,000, based on insufficient evidence at trial.

State v. Meadows. Junk Science. NarTest machine, used to determine if a substance is cocaine, deemed unreliable and inadmissible at trial. No evidence was presented at the trial that the machine was reliable or accepted in the field and no prior caselaw establishes it as a reliable technique, using Howerton standard. New trial.

State v. Simmons. During a routine stop, officer asked what was in a plastic bag and the driver said, "cigar guts." The officer searched, based on knowledge that people often use cigar papers to roll marijuana blunts. Held: No probable cause, based on statement of the defendant, as there was no nexus between the presence of loose tobacco and marijuana.

State v. Steele. Under 90-95(g), the state can give the defendant written notice 15 days before a proceeding of its intent to use a certified drug lab report without any further authentication and it is admissible unless defendant files a written objection with the court at least 5 days before the hearing. Here, defendant's lawyer failed to object. No 6th amendment problem under Melendez-Diaz, as the S.C. in that case specifically approved using notice-and-demand statutes for these types of reports. 90-95(g) constitutional.

Also, sufficient evidence of constructive possession in testimony of officers that he threw the drugs away while fleeing.

Other Cases.

State v. Beam. In drug case, court ruled that the definition of delivery in Gen. Stat. 90-87(7) includes the attempt to transfer and there was no entrapment in this case.

State v. Fortney. In possession of firearm by felon (among others), state declined defendant's offerred stipulation to prior felony and put on evidence of prior 1d rape conviction. Court found no error, as the state has to prove the prior conviction and they are free to do so, regardless of stipulated offering.

State v. Fortney
. Held that an NCIC report was admissible to prove out-of-state convictions, because it had adequate identifying information on it. Yikes.

State v. Sanders. No error in 1d murder case of not submitting duress instructions to the jury because all evidence of the threats were threats made after commission of the crime.

State v. Singleton. Trial court erred in ordering defendant to participate in satellite-based monitoring for life (SBM) as indecent liberties is not an aggravated offense under Gen. Stat. 14-208.6(1a).