Wednesday, June 2, 2010

Court of Appeals Update (June 1, 2010)

Reversals and other interesting cases.

State v. Brunson. Conviction for trafficking of hydrocodone and "improper passing" overturned.

During traffic stop (where defendant stopped a passed vehicle and almost hit a cop car), officer ordered the defendant, who seemed nervous, out. The defendant kept putting his hand in his pocket. The officer grabbed his hand and reached in the pocket, finding a pill bottle, with white pills in it. The officer called a pharmacy, learned that the mark on the pills, M360, was consistent with hydrocodone. The defendant was then arrested. Defendant tried and sentenced for trafficking in hydrocodone (a sch. III substance) and sentenced to 225 to 279 months.

Issue: State expert testified that the pills were hydrocodone by looking up the symbol, but without conducting any chemical analysis. Held: Expert should not have been allowed to testify to chemical analysis based on visual inspection alone, as this was unreliable expert testimony, inadmissible under Rule 702.

"However, without performing any chemical analysis on the pills, her testimony, although supported by experience and education, was tantamount to baseless speculation and equivalent to testimony of a layperson. Ms. Dewell’s proffered method of proof, visual inspection, was not sufficiently reliable as a basis for expert testimony."

State v. Johnson. Only issue on appeal was suppression motion.

1) Defendant's auto stop was based on an anonymous tipster that had identifying details or the person and car, but no information on the informant's basis of knowledge or information to predict the future behavior of the defendant. As such, the tip lacked sufficient indicia of reliability. As such it did not provide probable cause to search the car.

2) The stop, however, based on DWLR was legal. Under Arizona v. Gant (2009), however, the search of defendant's car was illegal. Defendant was in the police car, being arrested for DWLR. Officers could not lawfully search the interior incident to arrest, as defendant had already been removed from the car and couldn't reach anything.

Other cases.

State v. Bivens. Undercover officer's approached defendant (in a drug area) and made a controlled buy of what they thought was crack, but turned out to be sodium carbonate. Defendant convicted of possession with intent to sell, sell, and delivery of a counterfeit controlled substance (3 separate charges) . He was sentenced as an habitual felon to 80 to 105 months.

1) Defendant requested a jury instruction with the full definition of a counterfeit controlled substance from N.C. Gen. Stat. 90-87. Fails because defendant did not make his request in writing. Even if he had, no error because, even though court left out from definition the phrase: "and the amount of that consideration [paid for the fake drugs] was substantially in excess of the reasonable value of the substance" was not error as this is not an element of the offense, only a description of some evidence in support. The failure to instruct was not prejudicial.

2) Sufficient evidence here, even though defendant did not use the word "crack", where officers said they wanted a "20" and defendant produced a white crack-like substance in exchange for $20.00

State v. Crowell. Defendant pleaded guilty to trafficking in cocaine and appealed his denied motion to suppress, based on an illegal stop. Here, police stop was based on an informant's statement. This informant was known to the police and had previously given correct information. The informant was not anonymous. Looking at it in all it's circumstances, there was sufficient information to find probable cause to make the search of the car.

State v. Paddock. Convicted of 1st degree murder (under felony murder) and felony child abuse in death of her son, Sean Paddock, who died of asphyxiation, because he was tied up with blankets to prevent him from moving in the night.

State moved, under 404(b) to introduce extensive evidence of prior abuse of defendant's other 6 children. Trial court found the evidence relevant to show common plan/scheme, motive, malice, intent and lack of accident. Incidents included hitting the children and acts of torture, such as making a child ingest vomit, denying the children food, refusing to allow the children to go to the bathroom, beating them, and sitting for hours with knees touching the wall. Evidence properly admitted. In child abuse allegations, prior acts of violence against minors are commonly admitted under 404(b). The fact that some of the prior acts were against adopted children and step-children does not make them too dissimilar for admitting under 404(b).

No error in allowing psychologist to testify that the children were subject to "ritualistic abuse" and "torture." Her testimony did not amount to an inadmissible opinion on credibility, but was rather based on evaluation and appropriate use of her expertise.

State v. Pettigrew
. Defendant found guilty of 2 counts 1d sex offense, but not guilty of indecent liberties. Beginning at age 11, when his little brother was 6, defendant began committing sexual acts against his brother, which escalated over time. From statements, it was clear that the abuse stopped sometime prior to a violent incident that occurred on August 6, 2001, when defendant was 16 and the victim was 10.

At the close of evidence, defendant moved to dismiss on grounds that state had not proved the abuse occurred during the time set out in the bill of particulars (Feb. 1 to Nov. 20, 2001) (the period of time that the defendant was over 16 and his little brother was 10).

1) Evidence of abuse was sufficient. Substantial evidence existed and any variance between allegation and proof of time is not a material variance. The date is not an essential element.

2) Defendant argues that the court lacked jurisdiction, because no proof that any abuse occurred after turned 16. There was substantial evidence that defendant did commit the offenses during the time period. (Although the court doesn't say what that consists of).

3) Sentence of 32 to 40 years in prison for 1d sexual offense is not cruel and unusual.

1 comment:

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