Tuesday, July 20, 2010

Court of Appeals Update, July 20, 2010

Reversals and such.

State v. Pasteur. Reversal in a 1st degree murder case!

Court erred in failing to dismiss charge of murder where, while there was evidence of motive, there was no substantial evidence of means or opportunity. Only links to defendant to murder was (1) a drop of blood found on the bottom of his shoes matched the victim and (2) he was seen in the vicinity of a highway sometime around the victim's disappearance.

On the Blood the court said, "We believe these principles apply equally to DNA evidence used to identify a defendant as the perpetrator of the crime, and that when the State relies on such evidence for that purpose, it must also provide substantial evidence of circumstances from which the jury could conclude that the DNA evidence could only have been left at the time the crime was committed." Here, they did not.

State v. Boyd. Defendant convicted of indecent liberties with a minor. During a resentencing, the court asked the defendant if he wanted counsel and he said he did not. The court asked him to sign a waiver and he refused. As such, the court allowed him to proceed pro se.

The COA vacated the sentencing for violating right to counsel. Under 15A-1242, a defendant can only proceed pro se if it is established that he has been advised of his right to counsel, comprehends the nature of the charges and possible punishments, and understands the consequences of the decision to proceed pro se.

Because there is no inquiry of the type required, sentence vacated. Further, defendant's valid waiver at the prior trial (months before) is not sufficient to waive at the resentencing.

Remanded for resentencing.

State v. Craven. Defendant pleaded guilty to sale of cocaine and the court entered a prayer for judgment continued until the subsequent term. In the interim, defendant was convicted of new charges of selling and delivering cocaine. Defendant was sentenced to 16-20 months, running the new and the old charges together.

First, defendant makes a Melendez-Diaz argument that the SBI agent improperly testified about analyses conducted by other agents. There is a 4-part test to determine if the document embodying the analyses of another agent can be admitted:

(1) determine whether the document at issue is testimonial;

(2) if the document is testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant;

(3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert’s report or analysis;

and (4) if the testifying expert summarized another non-testifying expert’s report or analysis, determine whether the admission of the document through another testifying expert is reversible error.

The expert basically just put on the analyses done by others and said he agreed with them. This was a confrontation violation. This error was not harmless, even though a lay witness said she had used cocaine for 20 years and this was cocaine. While this is admissible evidence, it does not have the same impact on the jury as a chemical analysis. As such, defendants sentences (in these 3 counts) are vacated.

No error, however, in counting the prior charge (that had been PJC'd) as part of the record level for sentencing. PJC'd charges count as prior felony points and the date they occur is the date of PJC.

Further, for a PJC to be sentenced later, it must be heard for sentencing within a reasonable time. Here, the 2 year delay between the PJC and sentencing was not unreasonable. Further, because defendant did not request sentencing, he effectively consented to the continuation of the sentencing hearing.

Remanded for resentencing (on the remaining counts).

State v. Simmons. New Trial in a DWI case.

1) No error in denying a challenge for cause to a juror who was employed by the local university police, had issued citations, and worked with the DA's office to prosecute those cases.

2) Error in prosecutor's closing, in a DWI case, comparing this case to a case he previously prosecuted, where the jury found guilt, and reading from the appellate decision upholding that decision.

State v. Pinkerton. Court erred, during sentencing in a child rape case, by improperly punishing defendant for exercising his right to trial.

During sentencing, the defendant said, "Yes, sir. I would. I’d like to apologize. I loved you all. I really did. That’s all I have to say."

Then the sentencing judge said, "Now, Mr. Pinkerton, prior to calling the jury in, you had an
opportunity to plead guilty in a plea bargain where the Court offered you the minimum sentence for one crime which would have been about 22 years, and you explained to me that you thought 22 years or 200 years was the same, that it was a life sentence for you. But, if you truly cared - if
you had one ounce of care in your heart about that child - you wouldn’t have put that child through this. You would have pled guilty, and you didn’t. That’s your choice."

Then went on to say, "I’m not punishing you for not pleading guilty. I am not going to punish you for not pleading guilty. I would have rewarded you for pleading guilty. Your sentence is not in any way because you didn’t plead guilty. I’m sentencing you to what I think is appropriate."

Judge Hunter dissented.

Other Cases.

State v. Cline. Great Facts-- A Must Read. Appeal of denial of motion to suppress in drug seizure at home, in automobile, and statements by defendant made to police upon warrantless entry into his residence.

Two bystanders found a naked child in the road (2 years old) and called police. Police determined this was defendant's son. The officer went to a neighboring mobile home and pointed out defendant's residence. Police knocked on the door. No one responded. The officer saw a car nearby with a picture of the same naked child on the seat. The officer searched the car and located the registration. The officer then went around the back door and found it ajar. The officer felt the situation "just wasn't right" and "assumed that it was a dead body or something" based on his observations--although he didn't smell a dead body, observe any sides or criminal activity, nor any signs of blood or weapons. The officer entered without a warrant. In the bathroom, he found a marijuana grow operation. Found the defendant asleep in a bedroom and arrested him. Defendant made statements that the marijuana belonged to him (he also said they were "hydroponic tomatoes.")

HELD: There were exigent circumstances allowing the warrantless search. An objectively reasonable basis to believe that a party is injured and may need assistance provides exigent circumstances to enter. Basically, when there's a naked-ass baby on the side of the street unattended, it's reasonable to assume that it's parents are injured, possibly inside there home. The officer reasonably entered looking for that injured parent.

Just because it turns out that the parent is a drug dealer, who sleeps while their naked child roams, doesn't mean you can't use the plants against them.

State v. Ellis.

  1. Because defendant did not preserve the issue of whether denial of his continuance violated his constitutional rights, the issue cannot be considered on appeal.
  2. Victim in a robbery case told the prosecutor, for the 1st time on the first day of trial, that, when the defendant walked in, she recognized him as the robbery. No error in trial court's denial of continuance on the basis of this new discovery and lack of notice of the evidence. Based on the pre-trial written statement and composite sketch, the defense should have anticipated that the victim would be able to identify the defendant at trial.
Unfortunately, the defendant didn't make a motion at trial on whether this "show-up" ID process was valid or whether the out-of-court ID (of the defendant at defendant's table) should be kept out at trial. An interesting issue, unfortunately not raised at trial.

State v. Guarascio
. Defendant convicted for impersonating an officer.

In 2004, Defendant established a private police agency called Interpol Special Police. The State of North Carolina permits private police agencies, whether individually or corporately owned, to employ individuals to exercise law enforcement authority and arrest powers on property where the agencies have contracts for such services, such as apartment complexes and bars. The officers must meet the same minimum standards of training and proficiency as those officers employed by governmental agencies. One of the requirements to maintain certification as a sworn law enforcement officer is firearms qualification.

In January of 2006, Defendant reported to Vickie Huskey, the administrator for company and campus police agencies in the State of North Carolina administered under the Office of the Attorney General, that he had not complied with the firearms qualification in 2005. On 18 January 2006, Ms. Huskey contacted Defendant and told him to cease and desist from acting in any capacity as a law enforcement officer. She instructed him that he had no authority to wear a badge or uniform, carry a service weapon, or exercise any authority as a police officer.

Nonetheless, Defendant kept busting down doors and writing citations at apartment complexes and calling people, identifying himself as Officer Guarascio.

First, no error in joining charges of misdemeanor impersonating an officer (from 2 months prior) with subsequent charges of the same and felony forgery charges committed on later dates, as "These actions evidence a scheme or plan in which Defendant, despite verbal and written cease and desist notices that his certifications were suspended, acted under the guise of apparent authority as a law enforcement officer to interrogate, belittle, and intimidate minors." The circumstances were not so distinct as to render consolidation unjust.

Second, no fatal variance between indictment and proof at trial in one of the forgery counts. Defendant charged with forgery of "an order drawn on a government unit," the citations. Defendant argues that citations is not an order. It is, because it is a "police issued order to appear." Because defendant wrote citations to these minors for drinking, this was a forgery of an order drawn on a government unit.

Third: Sufficient evidence of impersonating police officer where defendant had on a jacket with a badge on it and a badge on his belt and identified himself as "Officer Guarascio," and one of the youths said when he busted down the door he said, "I am the law" or something like that.

Fourth: Jury instruction on impersonating an officer was insufficient, as it did not explain the ways that a person could "falsely represent to another that he was a law enforcement officer." However, this error was harmless.

Fifth: No error in judge deciding not to answer a juror's question: here "whether another officer can authorize another to sign his name to a citation."

State v. Haire. Defendant convicted of assault with a deadly weapon inflicting serious injury. Argues two points of error:

1) Judge gave erroneous self-defense instruction. The instruction:

"If you find from the evidence beyond a reasonable doubt that the defendant assaulted the victim, but not with a deadly weapon or other deadly force, and the circumstances would create a reasonable belief in the mind of ordinary firmness that the action was necessary or appeared to be necessary to protect that person from bodily injury or offensive physical contact, and the
circumstances did create such a belief in the defendant's mind at the time the defendant acted, the assault would be justified by self defense even though the defendant was not thereby put in actual danger of death or great bodily harm."

Defendant argues this placed a burden on defendant to prove beyond a reasonable doubt his self-defense claim. The COA found that, because there was no objection at trial, this is not plain error. At worst, it is a little confusing or misleading. In the absence of an objection of counsel, that's not enough.

2) Judge should have given jury written copy of the instructions when they asked. This is a discretionary matter. The court came to this conclusion based on reasoned thought. (Even though the record includes statements of the defense and the state saying they didn't think the court had authority to do so and the judge made his decision, at least in part, on the fact that he didn't have a copy of the instructions handy). While the court can give the jury the instructions in writing, it doesn't have to. No error.

State v. Medina
. Appeal of motion to suppress a warrantless vehicle search and statements made incident to that search, in a drug trafficking case.

Police had info from a confidential informant that a Hispanic male was dealing out of a burgundy Mitsubishi with chrome wheels at the burger king and would be there at 8:30am. At 9:10am, Defendant arrived in a car matching that description. Police approached and spoke to defendant in English. The defendant only speaks Spanish. Another officer spoke with the defendant in broken Spanish. The officer pointed to defendant's car and asked if he could look. Defendant nodded his head affirmatively. During the search, the police found drugs.

The Officer that spoke broken Spanish then took him back to the station and Mirandized him in Spanish and questioned him, during which the defendant made incriminating statements.

Issue: Was the consent to search the car free a voluntary, without coercion, duress or fraud? No requirement of knowledge of the right to refuse is necessary in conducting that analysis. The court concludes that there was no evidence that the consent was not voluntary. Likewise on the Mirdanda Waiver.

State v. Miller
. Defendant only appealed motion to suppress, did not appeal the judgment entered (where he pleaded guilty). Because of this, the court lacks jurisdiction to review the suppression.

Filing a notice of intent to appeal, prior to plea, while appropriate to promote a "fair posture for appeal from a guilty plea" is not enough to give the court jurisdiction. You must also give notice of appeal at judgment.

State v. Mills. Defendant has potential claim of IAC based on counsel conceded guilt to murder in closing. Incomplete record. Remanded for findings on that issue. Other issues:

1) Defendant's claim that trial court erred in refusing to allow him refresh a witness on cross was not properly preserved.

2) No error in refusing to grant mistrial after prosecutor, in closing, characterized defense counsel statement as a concession to murder. The prosecutor said he agreed with defense counsel’s statement that “a murder occurred out at the Castalia ball field.” While this was not error, it should be considered on the remand along-side defense counsel closing on the per se IAC issue.

State v. Mohamed.

First, no plain error in a Miranda challenge of involuntariness, where defendant was 18 and a non-native speaker of English. Adequate evidence was presented that the defendant understood the waiver.

Second, IAC claim for failing to move to suppress the statements is insufficient in the record. File an MAR.

Third, no error on basis of inadequacy of interpreters (because they spoke a different dialect from defendant) as there was no objection at trial and not plain error.

Fourth, no error in admitting, under 404(b), testimony concerning a separate robbery. Here, the crimes were sufficiently similar--both were robberies with a handgun by individuals with African accents, where credit cards were stolen and credit cards from both robberies were used by defendant at the same gas stations --and the robberies were within an hour of each other.

State v. Moses. Defendant convicted for robbery, conspiracy, assault by pointing a gun, and possession of stolen goods.

Facts: Defendant robbed some folks in a Hardee's parking lot. One of the things he stole was a cell phone. The victims called the cell and arranged to buy back some immigration papers (which were stolen) for $200. Durham PD got involved and nabbed the defendant when he showed up to sell the papers.

Issue 1: Defendant moves to suppress his statement to PD. Facts show that, while defendant initially refused, he re-initiated contact with the detectives and signed a subsequent waiver. Where the defendant re-initiates contact, the state can Mirandize and question him, even if he previously asserted his Miranda rights.

Issue 2: A state called a witness to the stand in front of the jury, who admitted to being arrested for participating in the robbery with defendant, but then asserted his right to remain silent and refused to answer cross. He was excused, but the court didn't strike his testimony. Defendant challenges court's refusal to strike the testimony. No abuse of discretion and, even if so, it was harmless.

Issue 3: Trial court erred in sentencing defendant for both robbery and possession of stolen property. Sentencing for robbery and possession of stolen goods, while not violating double jeopardy, does violate legislative intent. The purpose of the crime of possession of stolen goods is to provide a punishment in cases where the robbery or larceny cannot be proven; when it can, it is appropriate to punish under the more serious charge (larceny or robbery), not possession of stolen goods--even though it is not a true lesser of either charge.

State v. Peterson. No error in joining felony assault and possession of firearms case where the possession of the firearm charge involved the same weapon as that used in the felony assault case. The court found there was a sufficient transactional connection.

State v. Stanley. Abduction of a child, under Gen. Stat. 14-41 triggers registration requirements under the Sex Offender and Public Protection Registration Programs, if the person committing the offense is not the child's parent.

You must register under 14-208.7(a) if you are convicted for an "offense against a minor." Under 14-208.6(1i), abduction of a minor is an "offense against a minor" if the person committing the offense is not a child's parent.

What is a Parent? (it's undefined by statute). A parent is only a "legal parent." Here, where defendant was a step-parent, he cannot get benefit as he was not a legal parent. Therefore, he must register.

Tuesday, July 6, 2010

Court of Appeals Opinions (July 6, 2010)

Reversals and Interesting Cases:

State v. Fair. (Lincoln). "Unlike a stipulation to the existence of a prior conviction, which is binding on appeal, the trial court’s determination as to whether a conviction may be counted for felony sentencing purposes is reviewable on appeal."

Trial court erred in determining prior sentencing level because, despite stipulation, two of the prior convictions occurred on the same day and, thus, count as 1, not 2 convictions. Remanded for resentencing.

State v. Maready. (Durham) COA originally suppressed some evidence, which the Supreme Court overruled and remanded for consideration of the remaining assignments of error.

1) Defendant alleges IAC because trial counsel admitted guilt in closing to DWI, reckless driving, DWLR, larceny and involuntary manslaughter (but alleging arguing for acquittal of 2nd degree murder). Defendant agreed on the record that he had consented to admitting guilt to all these charges except involuntary manslaughter. No evidence in the trial transcript that he gave informed consent to that admission of guilty.

Harbison requires that "the trial court must be satisfied that, prior to any admissions of guilt at trial by a defendant's counsel, the defendant must have given knowing and informed consent, and the defendant must be aware of the potential consequences of his decision." No explicit consent here. New trial on the 2d murder count.

Other Cases:

State v. Blymer (Rowan). Appeal of conviction for 1st degree murder and robbery. Jury found that defendant beat the victim to death with a baseball bat, after taping his hands, as part of a robbery for $80.00 and some prescription pills.

1) Trial court erred in consolidating the convictions, as the jury did not make specific findings whether if found the defendant guilty on a theory of p&d or felony murder (if the felony was the basis for the felony murder, the underlying felony merges with 1st degree murder no sentence for that crime can issue). In the lack of specific findings (where both theories were submitted), the underlying felony merges. Arrest judgment as to robbery conviction.

2) No plain error in admitting 28 gruesome photographs of the corpse under 403 or the constitution. The state always gets to put in the gruesome photos of the body when the charge is murder.

3) No plain error under 404(b) in admitting 2 prior household robberies near the time of the victims death. Relevant to show motive, where in both cases the defendant robbed houses to support his addition to prescription pain killers.

State v. Covington. (Wake) Appeal of conviction of Possession with Intent to Sell or Deliver Cocaine. Defendant requested new counsel the day of trial on the grounds that counsel hadn't maintained contact with him and that he didn't know the trial was going to be that day. The court advised he could proceed pro se or keep his counsel. Denial of request for substitute counsel did not violate his right to effective assistance of counsel (6th Amendment).

"To obtain substitute counsel, a defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an
apparently unjust verdict." This case does not meet that standard.

State v. Dallas. (Perquimans). Appeal conviction for felony larceny of a motor vehicle and habitual felon.

1) Hearsay evidence as to the value of the property stolen was admissible.

First, two witnesses who cited the Kelley Bluebook value of their cars was admissible as a hearsay exception under Rule 803(17) which excepts "market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public..."

Second, testimony of a witness basing the value of her stolen tires from a call to Wal-Mart, was harmless error ("assuming it was error"-- it was). The error was harmless because, even without including the value of the tires, the value of the stolen car was greater than $1,000--necessary for the felony classification.

2) No error in sustained objection to defense question to expert about what the value of the car would be if it was junked and sold for parts, because the fair market value--not the junker value--is the value relevant under the statute.

3) Court award of restitution was invalid because it was based solely on state worksheet. Restitution must be supported by evidence. Restitution vacated.

State v. Goble. (Caldwell). Defendant convicted of felony failure to appear and habitual felon. Argues that should have been dismissed and that misdemeanor failure to appear should have been submitted to the jury.

Sufficient evidence in "Conditions of Release and Release Order" that defendant was ordered to appear, despite lack of defendants signature on that document.

Because defendant failed to appear on a felony charge, the statute (15A-543(c)) requires felony FTA. Only a failure to appear on a misdemeanor can result in a misdemeanor FTA. As such, defendant was not entitled to the misdemeanor instruction.

State v. Hopper. (Forsyth). Appeal on whether officer had reasonable suspicion to conduct traffic stop.

Officer observed defendant without taillights on in the rain. This was sufficient cause to stop defendant to issue a citation for no tailights under N.C. Gen. Stat. 20-129. Sufficient evidence that the stop occurred on a public road from officer testimony that the road was in a City housing project.

State v. McLean.

1) Admission of this statement: "A. [Description of the events prior to the identification] Officer McDaniel viewed the photographs. He identified the subject that he had just purchased crack cocaine from as photograph No. 2308. At that time I crossed-referenced that over and it was a photograph of Erica Lashell McLean." was not plain error. The "cross-reference" was a business record, excepted from hearsay under Rule803(8). While generally police reports are not exceptions, records of "routine, non-adversarial matters made in a non-adversarial setting" (which apparently includes a photograph collected and kept in a database) are exceptions.

2) No error in expert testimony instruction.

State v. Miller
. (Guilford). Defendant sentenced to 30 days. Requested to do it on the weekends and the court indicated it had no authority to do so. On appeal, COA stated that there is no provision in Article 81B authorizing an active sentence of non-consecutive days.

State v. Owens. In felony possession of house-breaking tools conviction (and other crimes):

First, defendant objects to detective statement at trial that they found "bolt cutters, wire pliers, screwdrivers, wrenches; miscellaneous tools that we consider house breaking tools" as an inadmissible opinion, invading the province of the jury (one of the counts was possession of burglary tools). In State v. Turnage, the COA found that this statement by an officer on the stand: "[w]e searched [the defendant] and found . . . a screwdriver and a metal rod in his pockets indicating that he was just probably in the process of breaking into a residence. Those types of tools used [sic] to break into residences" was an impermissible opinion. However, the court parsed that the statement in that case included the "probably in the process of breaking into a residence" language, and this one doesn't, making the apparently legally conclusive difference. The court went on to hold that, even if it was error, it was harmless.

Second, the Court improperly invaded the province of the jury when it gave an instruction that "bolt cutters" are an implement of housebreaking. However, such error was harmless.

Third, the trial court should have arrested judgment on the first degree trespassing count, as it was a lesser included offense of felony breaking or entering.