Thursday, March 4, 2010

Court of Appeals Update (Mar. 2, 2010)

Reversals and other interesting cases.

State v. Barron. Defendant convicted of possession of cocaine and marijuana and identity theft.

1) Possession: Insufficient evidence for the drug possession conviction. The drugs were found in a house where defendant didn't live and three other people were present during the search. Where defendant doesn't have exclusive possession, there must be other "incriminating circumstances" to prove constructive possession. Here, there was none.

2) Identity Theft: during arrest, defendant gave his brother's name and social security number. This was sufficient to convict of identity theft. To prove ID theft under Gen. Stat. 14-113.20, the state must show that the Defendant
"A person who knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person's name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequences." Identifying information includes SSN (in the statute).

3) False Statement: is not fruit of the illegal arrest. Crimes committed after an illegal arrest are not excluded under the fruits doctrine.

State v. Breathette. Held that mistake of fact as to age of victim is no defense to charge of taking indecent liberties with children, Gen. Stat. 14-201.1 (willfullying taking any "immoral, improper, or indecent liberties with any child ... under the age of 16 ...for the purpose of arousing or gratifying sexual desire.") Defendant's belief that the minor was 16 was no defense.

Defendant was 19 years old female who met a 13 year old female on Myspace, who told the defendant she was 17 years old.

State v. Freeman. Trial court erred in letting trial counsel overrule defendant on whether to exercise a peremptory challenge. Defendant's have a few absolute rights at trial: right to decide whether or not to testify, the right to not concede guilt to lesser included crimes, and the right to have final say on peremptories.

But, no error in using attempted sale of cocaine with a firearm as the predicate felony in a felony murder charge, where defendant was seeking payment on cocaine that had been delivered. First-degree murder under the theory of felony murder is a killing “committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon.” The sale of drugs is a felony under this if a deadly weapon is used in its commission.

New trial.

Other Cases.

State v. Batchelor. Defendant convicted of possession with intent to sell cocaine and sale of cocaine.

1) Defendant argued that officer's testimony that an informant told him the defendant was a drug dealer was not improper hearsay testimony. It was not offerred for truth, but rather to explain why the officer showed up in a particular location.

2) Officer's statement on the stand that he knew the defendant "personally as a drug dealer" was not, for plain error purposes, a violation of 404, as any error would have been harmless.

State v. Best. Upheld that a printout of an AOC screenshot from an email was sufficient evidence to prove a prior conviction for sentencing.

State v. Hough. No Melendez-Diaz error in allowing analyst to testify about analysis conducted by non-testifying expert where her opinion was based on her own independent review and confirmation of the results.

State v. Johnson. No fatal variance where indictment of name of purchaser in drug sale case was "Detective Dunabro" and the proof at trial was the sale was to "Agent Amy Gaulden." This was not fatal because these were same person, just one was a married name and one was a maiden name. The description was sufficient to ID the purchaser.

State v. Noel. The defendant was convicted of malicious conduct by a prisoner and assault on a governmental official. After arrest (and on the side of the road), defendant yelled at an officer and spit on his leg. This was sufficient evidence of malicious conduct by a prisoner. No error in indictments not specifically identified what duty the officer was discharging; that's only required for an RPO.

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