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.

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