Wednesday, April 21, 2010

Court of Appeals Update (Apr. 20, 2010)


State v. Holcombe. Reversal of malicious secret assault (Gen. Stat. 14-31) as there was insufficient evidence of secret manner.

To show secret assault (Class E felony), must prove defendant:
  1. Committed an assault or battery
  2. With a deadly weapon
  3. In a secret manner (i.e. lying in wait): where a victim does not know of the defendant's presence or, knowing his presence, doesn't know an attack is coming (and thus has no opportunity to defend themselves)
  4. with intent to kill or malice
Here, the defendant's "surprised" the victims by surrounding their car in a parking lot. However, this is not a secret assault, as there was time from the surrounding and the assault where the victims were made aware that an attack was coming. No evidence that the victims had no opportunity to defend themselves.


State v. Wilson. Insufficient evidence, in possession of stolen goods case, to establish that the defendant knew or had reasonable grounds to believe that gun was stolen (but upholding robbery conviction).

No evidence that defendant knew the gun he possessed was stolen. Evidence of incriminating behavior (i.e. hiding the stolen object) can be evidence in support of conviction, but here the defendant's hiding of the gun after a robbery is explained as hiding it because it was used in a robbery, rather than hiding it because it was stolen. No other evidence than the "hiding" was presented, as such, insufficient evidence to establish that defendant knew the gun was stolen.

Other cases.

State v. Armstrong. In DWI-creash related killing defendant was convicted of 2nd degree murder and DWI. Held: 1) No double jeopardy problems, even though violation of the DWI law was an element in the 2nd degree murder because "double jeopardy does not prohibit multiple punishment for two offenses – even if one is included within the other under . . . – if both are tried at the same time and the legislature intended for both offenses to be separately punished," 2) trial court erroneously instructed on DWLR by stating that the state had proved knowledge, but such error was harmless because the trial court immediately corrected this error; and 3) trial court properly used DUI's from Alabama in sentencing as they were substantially similar to NC DWI, which is a class 1 misdemeanor.

State v. Curry. Indictment for firing into occupied property (Gen. Stat. 14-34.1(b)) said the defendant fired into a "residence" and said it was a class E felony. The statute uses the term "dwelling" and it is a Class E felony. The error as to felony class was harmless and residence and dwelling are synonyms.

State v. Espinoza-Valenzuela.
No error in child sex case of admitting evidence that:

1) defendant struck victim's mother in presence of victim, because it was relevant to explain why victim was afraid to report abuse (non-404(b) purpose) and explained delay in reporting. Further, because no objection at trial, doesn't rise to plain given the overwhelming evidence of guilt.

2) in allowing CPS worker to testify that victim's mother was sexually abused as a child, as it was relevant to explain why the mother was hesistant to contact authorities (non-404(b) purpose).

3) Cannot challenge expert testimony on claim that it improperly bolstered victim credibility, as no objection at trial.

4) sufficient evidence presented at trial to survive motion to dismiss where victim testified that defendant committed the charged acts, despite defendant's claim that the evidence "was simply unbelieveable."

5) defendant's two consecutive sentences within the presumptive range for a total of 240-297 months did not violate the 8th Amendment for multiple counts of child rape.

State v. Hagin. Defendant gave written consent to search his property, including a mobile home. Police informed the defendant he could withdraw his consent any time. While on site, in presence of the defendant, the police searched an outbuilding and found evidence of methamphetamine manufacture. Search legal as the outbuilding was within the scope of consent and defendant did not withdraw his consent when police approached, even though he was present and could have.

State v. Taylor.
No error in conviction of possession of firearm by felon and habitual felon. Indictments were not invalid based on wrong offense date of 12/8/1992 instead of 12/18/1992.

The state had sufficient evidence to show constructive possession of firearm. "The defendant has constructive possession of the firearm when the weapon is not in the defendant's physical custody, but the defendant is aware of its presence and has both the power and intent to control its disposition or use. exclusive possession of the location where the firearm is found, the State is required to show other incriminating circumstances in order to establish constructive possession." Here, defendant had spent rounds in his pocket, told an officer he had been outside shooting, but got rid of the weapon, there was ammunition in his house, and, then, on search of the area the officer found a firearm. This was sufficient evidence to show constructive possession.

Friday, April 16, 2010

Supreme Court Update (April 15, 2010)

State v. Defoe. The Court overruled State v. Rorie and held that trial courts have the power to declare a case non-capital where rule 24 is not complied with.

Rule 24 requires:
1) Within 10 days of indictment on a capital charge for the prosecutor to apply for a rule 24 hearing to be held to announce whether or not the case will be tried capitally; and

2) Within 45 days of that notice, to hold such a hearing.

In this case, there had been no Rule 24 hearing in nearly 4 years. The court found that, while a trial court had discretion to declare a case non-capital, non-compliance alone is not enough. The defendant must show that he was prejudiced in some way by the failure to hold a rule 24. Otherwise, the trial court can issue other, less sever sanction.

The Rub: New rule- if no timely rule 24 is held, you can file a motion to strike the death penalty and, if you can show prejudice, you might just win.

Wednesday, April 7, 2010

Court of Appeals Update (Apr. 6, 2010)

Reversals and other interesting cases.

State v. Daniels. Defendant appealed conviction for 1st degree rape and 1st degree kidnapping and sentence of 307 + 133 months. The court ordered resentencing and ordered that the trial court either arrest judgment on the 1st degree kidnapping or the 1st degree rape. Trial court arrested on 1st degree kidnapping and sentenced to 1st degree rape and 2nd degree rape consecutive, for 370 + 45 months.

This re-sentencing on 1st degree rape violated Gen. Stat. 15A-1335 because it provided a harsher punishment after appeal than originally provided. ("When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.")

State v. Haymond. Defendant, acting pro se, was convicted of 4 counts of felony b&e and a bunch of counts of felony larceny and possession of stolen goods and sentenced to 116 to 149 M as a habitual felon.

1st, search warrant was valid. Defendant's contention that the officer intentionally omitted material facts from his affidavit. Court found these omissions immaterial and found adequate evidence of probable cause.

2nd, statements made by defendant at pre-trial hearing, in open court, could have been used against him at a later proceeding, as they were not protected 410 statements (made during a plea) or otherwise inadmissible. Also, they were not protected statements made during a suppression hearing because, though they were made at a suppression hearing, they could still be used for impeachment purposes and were on other matters, anyway.

3rd, the trial court did not instruct on an "acting in concert" theory on 3 b&e charges. As such, there had to be evidence that defendant personally committed every element of the offense. There was insufficient evidence presented to show this, so those 3 of the 4 counts are reversed.

4th, prior to trial, the defendant asked the trial judge, Judge Henry Frye, Jr., to give him 5 years, instead of the state's offered 10 years, to which the judge said “So I’m justtelling you up front that the offer the State made is probably the best thing.” At sentencing, the trial judge said, “[w]ay back when we dealt with that plea different times and, you know, you told me you didn’t have any drugs problems, you didn’t have anything, what you wanted to do, and I told you that the best offer you’re gonna get was that ten-year thing, you know.” Then sentenced him to, essentially, 10 years. This shows the trial court improperly considered the defendant's failure to accept the state's plea offer in making the sentence. New sentencing hearing ordered on the remaining charges.

State v. Hinson. Defendant indicted for manufacturing methamphetamine and possession precursor chemicals and subsequently convicted.

1) Search Warrant was based on informant information that defendant was operating a meth lab in his home 3 weeks ago. Argued that this was "stale" and thus no probable cause. Viewed in entirety, there was additional information from only a day before and information that this was a "long-term" lab.

2) Variance on Indictment and Instruction. The indictment said defendant manufactured meth by "combining and synthesizing precursor chemicals." Trial court instructed jury that "the State
must prove beyond a reasonable doubt that [Defendant] manufactured methamphetamine. Producing, preparing, propagating, compounding, converting or processing methamphetamine, either by extraction from substances of natural origin or by chemical synthesis would be manufacturing methamphetamine." This variance was plain error. Reversal. New trial.

Judge Steelman dissented (on instruction issue).

State v. Phillips. Defendant shouldn't have been ordered to enroll in lifetime satelite-based monitoring, as the offenses--indecident liberties and child abuse-- where not "aggravated offenses" as defined in Gen. Stat. 14-208.6(1a).

Other Cases:

State v. Chery. Defendant pleaded guilty and then testified against his co-defendant, who was acquitted. Defendant then filed a motion to withdraw his plea, before sentencing.

1) Innocence is not a legitimate basis for withdrawing, because defendant entered a no contest plea.

2) State's proffer of evidence was adequate.

3) Plea was voluntary, with adequate representation of counsel; and

4) Length of time, 4 months between hearings, weighs against withdrawal.

State v. McRae. During a traffic stop, defendant ran and was arrested for RDO. During that process, a bunch of drugs was seized. Only issue is whether the stop was legitimate.

Court held the stop was legal. Auto stops are constitutional where an officer has reasonable suspicion. Here, there was reasonable suspicion to stop the car, because (1) defendant failed to use his turn signal when exiting the highway; failure to use a turn signal only is illegal if another car is affected. Here there was medium traffic and the officer was following closely and was affected (compare with Ivey, where the defendant stopped at a stop sign and didn't use a signal) and (2) there was a CI tip--with known reliability--, broadcast over the radio, to be on the lookout for a black male in a green Grand Am in Pembroke. Court ruled that each provided independent reasonable suspicion for the traffic stop.

State v. Cruz. Defendant was convicted of 2nd degree murder. Defendant requested a jury instruction on on perfect self-defense (actual and reasonable fear, not the aggressor, and no excessive force) and voluntary manslaughter on theory of imperfect self-defense (actual and reasonable fear, but excessive force and/or first aggressor) . Trial court instructed only on perfect self-defense.

Trial court properly denied because the defendant started the fight and there was no evidence of his belief of danger. For some reason, the COA found it irrelevant for making this determination that the trial court did instruct on perfect-self defense, which requires exactly the same elements they found lacking for imperfect-self defense.

Judge Hunter dissents.