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.



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