Wednesday, May 19, 2010

Court of Appeals Update (May 18, 2010)

Reversals and interesting cases.

State v. Brewington. Defendant found guilty of possessing cocaine. Challenge to expert testimony based on Melendez-Diaz grounds (that expert testified to opinions of non-testifying expert about the chemistry of the cocaine). SBI Agent identified the substance as cocaine based solely on testing conducted by a non-testifying agent. Under Melendez-Diaz, this violates the 6th Amendment right to confrontation.

State v. LePage. Defendant convicted of statutory 1d sex offense, delivering a constrolled substance (CS) to a minor, indecent liberties, 2 counts contaminating food with a CS, and possessing a CS with intent to deliver and was sentenced to 238-295 M + 64 to 86M + 16-20M + 6-8M. Basically, defendant drugged a 14-year-old neighbor and had sex with her.

1) 404(b): state offered evidence of a 16-year old who met the defendant in AA and defendant made sexual advances towards her. She rebuffed him. Found this error harmless in light of overwhelming evidence and did not evaluate the 404(b) evidence. (Ed. note: the court didn't evaluate it because it's absurd on it's face to use as 404(b). Propositioning a 16-year-old is perfectly legal and the fact he accepted rebuff without further incident makes it nothing like the charged conduct). Also dealt with jury instruction issue on 404(b) in same manner.

2) Proper to instruct on anal penetration as theory for 1d sex offense where evidence of anal laceration was present.

3) Indictments for deliver of a CS and contamining food with schedule IV CS were defective. Indictments said the CS was "Benzodiazepines", which is not listed in schedule IV. As such, the indictment was defective and those charges are vacated (as trial court lacks jurisdiction if there is a fatal defect in an indictment). Benzodiazepines are class of drugs. They should have used the name of the specific drug used (Clonazepam).

State v. Nunez. Defendant convicted of multiple counts of trafficking in marijuana. Sentenced to 25+25M.

1) Sufficient evidence present. Elements: 1) knowingly transport; 2) more than 10 pounds of marijuana. Circumstantial evidence of knowledge (where defendant received deliveries of MJ) sufficient to meet this standard. Adequate circumstantial evidence of knowledge where the packages were address to someone who did not live in the apartment and the defendant accepted them and took them inside without telling the postman of the name error and immediately calling someone else to pick up the packages.

2) Trial court erred in running the sentences consecutively. Trial court believed (based on representations of counsel) that Gen. Stat. 90-95(h)(6) required the sentences to be run consecutively. 90-95(h) reads:

“[s]entences imposed pursuant to this subsection shall run consecutively with and shall
commence at the expiration of any sentence being served by the person sentenced hereunder."

This means the sentence must be run consecutively to any sentence already being served. It does not have to be consecutive to sentences imposed at the same time. As such, the trial court has discretion to determine if it will be run concurrently or consecutively. Remanded for resentencing. -

Other Cases.

State v. Lackey. Defendant found guilty of possession of cocaine (.1 grams) and habitual felon.

1) Did the trial judge error in giving a second Allen charge (Gen. Stat. § 15A-1235? Such an instruction is permissive, not mandatory, and within the trial court discretion. Here, 1st Allen charge given after 1 hour of deliberation and vote was 11-1. The next day (after a total of 1 1/2 hours of deliberation), the judge gave another Allen charge before they started deliberating. No abuse of discretion.

2) The sentence of 84-110 months was not grossly disproportionate under the 8th Amendment for possession 0.1 grams of cocaine.

3) The following process was used for polling the jury: "As foreperson on the jury, you have returned for the unanimous verdict of the jury, “We, the jury, return as you unanimous verdict that the Defendant Ricky Earle Lackey is guilty of possession of cocaine.” Is this your verdict, and do you still assent thereto?" Defendant objected to the wording of the questions for not asking it as two questions: (1) Is this your verdict? (2) Do you still assent thereto? Court found no error and said this complied with the statute.

State v. McCormick. Found guilty of assault by pointing a gun, communicating threats, AWDWISI, and 1d burglary.

1) No fatal variance between the indictment for 1d burglary and the proof offerred. Defendant argues that the indictment failed to properly identify the premises, because the indictment said, the "house of Lisa McCormick at 407 Ward Branch Rd" but really it was at 317 Ward Branch Rd. Nominal errors in the house number do not render indictments defective.

2) Lack of "without consent" in indictment is not a defect as "without consent" is not an element of burglary (rather, it is a defense).

3) No error in taking judicial notice of sunset for "nighttime" requirement of burglary.

State v. Reid. Defendant found guilty of 2d rape and incest.

1) Challenge to incest (14-178) as constitutionally overbroad was not preserved.

2) Challenge to cross-examination objections was not preserved.

3) No error in allowing defendant to represent himself at trial, despite his apparent mental illness. No clear evidence of delusional thinking and proper inquiries were conducted.

State v. Toledo. Trial court granted a suprression motion, where spare tire was taken from under defendant's vehicle without a search warrant.

Defendant stopped while driving a black suburban with a Connecticut license plate for following too closely. During the stop, noticed that the defendant was very nervous. Asked him if he had any drugs and the defendant said, "no, go ahead a look." Officer saw a tire in the luggage area that was larger than the tires on the car. Driver said the tire was from his "truck in Miami." Driver couldn't explain why he had a truck in Miami if he lived in Connecticut. The officer released some air from the tire and smelled marijuana. He handcuffed the defendant, searched the car, and found 16.45 pounds of MJ, most of it in a tire under the vehicle. Trial court surpressed the evidence from the tire seized under the vehicle, as it exceeded consent.

Held: Officer could search the entire car because he had probable cause due to the marijuana smell from the tire in the luggage compartment. Reversed. Trial court confused new law under Gant for search incident to arrest (which wouldn't have allowed the search of the tire underneath) with the general automobile exception (which does, as long as there is probable cause).

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