Monday, May 10, 2010

Court of Appeals Update (May 4, 2010)

Reversals and Other Interesting Cases

State v. Braswell. Insufficient evidence of failure to verify address (for sex offenders) where no evidence that he ever received the proper verification form to fill out.

State v. Brennan. Violation of confrontation clause where expert testified that substance was cocaine, essentially by reading a non-testifying expert's report. Distinguishes this from State v. Mobley, where testifying expert relied on non-testifying experts report in forming her own expert opinion. New trial.

State v. Samuel. Trial court committed plain error in allowing the admission of two guns found in defendant's home during a robbery trial. The guns should have been excluded under 402, as they were not relevant to any fact in issue. The gun used in the robbery was described as a big, gray 9mm semi-automatic pistol. A small silver revolver was found in defendant's room and another semi-auto was found in a safe in his step-father's room. Because there was not any evidence linking either gun to the crime, there existence was immaterial and improperly admitted. New trial.

Wynn concurs, but believes only admission of the silver revolver was error.

Other Cases.

State v. Hager. No error in allowing state to amend indictment after close of all evidence to change the offense date.

State v. Hall. Where defendant possessed pills that tested positive for both ketamine (Special K / Mad Kat) and Ecstacy, no double jeopardy in his conviction for both possessing Schedule I and possessing Schedule III substance.

State v. Jarrett. During a stop at a license checkpoint, an officer noticed and asked a passenger what was in the can he was drinking. It was a can of beer. At this point, the stop went from a license check to a full seizure.

First, the license stop was valid a checkpoint. Checkpoints must be reasonable: brief in duration, without indiviudalized suspicion, and with a legitimate purpose. The checkpoint stopped all cars (no individualized suspicion), to check ID then waive through if properly held (brief/reasonable), purpose was to check IDs and for any plain view evidence of criminal activitiy because drivers in that area often don't have licenses or are DWI (legitimate purpose, enforcing DWLR laws). The checkpoint was overall reasonable as the interference was brief and the purpose legitimate.

Second, the seizure of the defendant at the checkpoint was valid. Officer had reasonable suspicion to continue the stop and ask "What's in the can" because he saw a can and saw the passenger try to hide it. Once the can was known to be beer, the officer had cause to continue investigating whether the defendant was DWI.

State v. Johnson. IAC claim dismissed without prejudice to file MAR.

Defendant challenged the admission police log as "corroborating evidence," offerred to corroborate police testimony--an alleged "non-hearsay" purpose. The court dodged the issue, finding the admission harmless.


State v. Little. First degree murder case. Defendant argues that trial court should have suppressed his confession, under Miranda, that he was subjected to an unwarned custodial interrogation and was interrogated after requesting an attorney.

First, he was not in custody. To be in custody there must be "inidica of formal arrest" (NC rejects the "free to leave" standard). Defendant voluntarily drove to the police station, taken to a room where the doors were unlocked, was patted down for weapons and then questioned. Defendant never told he was under arrest. During interview, officer told him he was not under arrest. At one point during the interview, defendant stood up and said, "I'm trying to leave." No one restrained him and he eventually sat back down. Defendant eventually asked for an attorney and the interview was terminated. Here, these facts do not equal custody.

Second, he was not questioned after asking for an attorney. A request for an attorney requires the police to terminate questioning (as the court notes, this is probably not true if he's not in custody, but they take up the issue "in an abundance of caution"). The request must be unambiguous. Defendant said, "I'm probably going to have to have a lawyer." The interviewer responed... "It's up to you man..." This was not sufficiently unambiguous to trigger Miranda rights.

State v. McCravey. Satelite-based monitoring appropriate for 2nd degree rape, as the definition of aggravated offense (required for SBM) is not unconstitutionally vague and includes 2d degree rape.

State v. Roman. No fatal variance where charging document said the charge was: Assault on government officer during discharge of duty, which was arresting the defendant for communicating threats. At trial, officer testify he was arresting the defendant for being intoxicated and disruptive. This was not a fatal variance as the specific charge being arrested for was not a necessary element of the charge (the elements are: assault, on officer, while discharging duty).

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