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.





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