Wednesday, June 16, 2010

Court of Appeals Update (June 15, 2010)

Reversals and Other Interesting Issues:

State v. Jessica Ferguson. Convicted of felony PWISD marijuana, felony marijuana possession, misdemeanor possession of drug paraphernalia (PDP), and misdemeanor resisting a public officer (RPO). Defendant was riding in a van that was speeding. Police pulled them over. The driver got out, ran away, and was never found. Defendant was left in the van. Police searched the car, found a roach n defendant's purse, a small bag of marijuana in the glove box, and some big bags of marijuana under the seats.

First, defendant challenged officer's opinion testimony that leafy substance found in her purse during a search was marijuana (under plain error). No problem with officer not being qualified as an expert, since the defendant didn't object and no general requirement that they be so-qualified to identify illegal substances. Officer had an adequate basis (training/experience) to make that statement. No error.

Second, defendant challenges sufficiency of evidence of constructive possession. Constructive possession is shown if defendant has:
  • Lacks actual possession, but has the intent and capability to maintain control and dominion over that thing; BUT
  • If defendant doesn't have exclusion possession of the place where the contraband is found, the state must show other "incriminating circumstances" (suspicious behavior, made incriminating statements, failed to cooperate, acted nervous, etc.)
Here, defendant had no special connection to where the marijuana was found. She was not the owner or the driver of the car and the driver fled on foot, while she hung around. No incriminating circumstances, thus no constructive possession of the big bags.

Felony MJ possession charges vacated. Convictions for PDP and RPO stand. Defendant to be resentenced for PDP, RPO, and misdemeanor marijuana possession (the roach).f

State v. Huey. In possession of heroin case, appeal of denial of motion to suppress evidence. Police were searching for suspects of approximately age 18. Stopped defendant, who was 51 years old. Held: Police lacked reasonable articulable suspicion to stop the defendant. Heroin seized was fruit of that illegal stop. Reversed.

Other Cases.

State v. Ricky Bethea. Defense counsel assertions at trial and failure to object to sentencing worksheet constituted a stipulation that a prior out-of-state felony (federal conspiracy to distribute cocaine) was substantially similar to an instate felony for prior record points.

Counsel's statement:

DA: Does [defendant] stipulate to having two prior record level points for felony sentencing purposes, making him --

DEFENSE: Judge, I saw one conviction on the worksheet. Ricky has agreed that’s him. Two points.

State v. Thomas F. Brown. Defendant convicted for trafficking cocaine. Appeals denial of motion to suppress statement.

During a traffic stop, an officer smelled marijuana and saw a "green leafy substance" on defendant (a passenger)'s shirt. The trooper searched the defendant and found white powder. He was interrogated and admitted that he was a "mule" and planned to sell the cocaine for someone else.

Defendant contends his Miranda waiver was invalid because it was not made knowingly, intelligently, and voluntarily. No error where defendant didn't say he understood after each warning, but rather only said "yes" to a final question“do you understand each of these rights
that I have explained to you?"

State v. Kendrick Dark. In possession of cocaine case/hand-to-hand sale case, defendant moved to reveal the identity of a confidential informant.

The State is privileged to refuse to reveal a confidential informant, with some exceptions. The trial court must balance the state's needs versus the defendant's right to present his case. “Two factors weighing in favor of disclosure are (1) the informer was an actual participant in the crime compared to a mere informant, and (2) the state’s evidence and defendant’s evidence contradict on material facts that the informant could clarify. Factors which weigh against disclosure include whether the defendant admits culpability, offers no defense on the merits, or the evidence independent of the informer’s testimony establishes the accused’s guilt."

Here, those the informant was present and arranged the drug sale, there was no forecast of how the identity could prove useful to the defendant, especially where the defendant's guilt is established by the officer who made the hand-to-hand purchase.


State v. Jason Mauck. Defendant challenged an out-of-state probation revocation on jurisdiction grounds, arguing the state did not prove the probation had been transferred to Buncombe from Haywood County.

No jurisdictional problem here because a prior modification occurred before a Buncombe judge and the modification--which was entered in Buncombe--was being revoked. Further, no proper notice of appeal from the initial modification, so cannot attack the jurisdiction of the modification in this appeal.

State v. Kelcie Morton. On remand from Supreme Court reversal adopting prior COA dissent (which found reasonable suspicion for a stop). COA now has to deal with remaining issues.

1) Officers did not exceed scope of search for weapons by taking a digital scale during pat down. During pat down, the officer immediately recognized (plain touch) that it was a digital scale and, in conjunction with tips about drugs, that this was illegal paraphernalia.

2) The digital scale (along with drug selling area and informant tips) created probable cause for more intrusive searches.

State v. Dwayne Pringle. Appeals conviction for robbery and conspiracy to commit robbery. Defendant’s appellate counsel states he is “unable to identify an issue to support a meaningful argument for relief on appeal” and “finds the appeal to be without merit.” The court raised a few issues on it's own and then found no error. Why was this published?

State v. William Walker. Appeals conviction of assault with a deadly weapon inflicting serious injury.

Defendant challenges state's use of its own witness's prior statements, on basis that those statements were collateral and contained some inconsistencies. The court held, because the two statements were "generally consistent" with each other, they were admissible as prior consistent statements.

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