Tuesday, September 7, 2010

NC Court of Appeals, Criminal Decisions (September 7, 2010).

State v. Bettis. Appeal of possession of firearm by felon and armed robbery.

First, no error in excluding evidence that there was second subject on a bicycle that was not tracked from the scene. The court repeatedly kept out evidence of whether officers had heard about another suspect, matching the robbers description, who was seen in the area around the same time on a bicycle. The defendant failed to preserve this issue by not making an offer of proof or providing further evidence of the "man on the bicycle" issue.

Second, no error in instructing jury on flight, even though there was only "circumstantial evidence" that the defendant was the person seen fleeing the scene in a car.

Third, defendant not entitled to a dismissal or an instruction on common-law robbery on theory that state didn't prove gun was "operable." Basically, in the absence of evidence that the gun is inoperable, the court willing to presume operability. (Which makes sense...basically, if a gun is used in a robbery, that fact alone is some evidence of operability, because who would pull a gun on another person unless it worked?)

State v. Biber. Appeal on suppression grounds of seized cocaine. Police knocked on door of hotel room in response to complaint of drug activity. When the door opened, the hotel manager told the man who answered that "you are not supposed to be here" and then the officer stepped around the doorway and encountered the defendant. The officer asked whose room it was and defendant said it was his (it wasn't). A girl got up off the bed and ran to the bathroom. Officer believed she was destroying drugs and grabbed her and got a crack pipe. Officers then tossed the room and seized drugs and paraphernalia. No drugs found on the defendant, just in the room. There were 3-4 other people there as well.

Held: Trial court found that defendant had no standing to challenge the search. This holding was upheld, but the COA went on to find that no evidence existed of defendant's constructive possession. As such, evidence should have been suppressed.

No drugs were found on defendant or in his duffel bag or any of his personal belongings. No evidence that defendant had exclusive control of any of the items or that there were other circumstances indicating that he, not one of the other people in the hotel room, had possession of the drugs.

Judge Steelman dissented on procedural grounds..

State v. Effler. Appeal of manslaughter conviction. Defendant argued that the court committed plain error in failing to give a "no duty to retreat" instruction and that there was no evidence that the defendant was the aggressor.

Self defense is a complete defense where defendant killed to protect himself from death or great bodily harm, was reasonable in his belief, was not the aggressor, and didn't use excessive force. If the defendant uses excessive force or is the aggressor, the defendant only has an imperfect self-defense and is still guilty of manslaughter.

A self-defense is defeated if the defendant "aggressively and willingly enters into a fight without legal excuse or provocation." Here, sufficient evidence existed that defendant was the aggressor because the fight started after defendant threw his tools in the yard, while cussing at the victim. Also, attempts were made to stop the fight, but defendant kept going and didn't stop until he stabbed the unarmed victim.

Further, failure to instruct on no duty to retreat, in the absence of a request, was not plain error. While the court must so instruct, even in the absence of a request, failure to do so here was harmless.

State v. Forte. Defendant convicted of exploitation of an elder (stealing money from an old person in your care by coercion, abuse of position of trust, or fraud). Sufficient evidence that victim was an "elder" where victim was 99 or 109 and some evidence existed that he could not manage his own financial affairs. Further, even though no formal arrangement existed, because victim relied on defendant to drive him around, manage his finances, etc., defendant was a caretaker under the statute.

No error in allowing the victim to testify; the fact he was an "elder" under the statute doesn't make him incompetent to testify.

State v. Livengood. Defendant found guilty of 1d statutory sex offense and was sentenced to 336 months in jail.

On state's direct, a doctor testified that there was no trauma to victim's hymen. On cross, she stated that this could be consistent with rape or no rape. Later, witness said "There's no physical findings which do not rule out her disclosure" when asked if there were no physical signs of rape. Defendant's objection, that this was an improper comment on the witness credibility, was overruled. No error, as this statement was consistent with her prior statements (that lack of hymen damage is consistent with rape or no rape).

Challenges IAC for failing to object to other portions of the doctors testimony, eliciting bad unhelpful info from her on cross examination, and failing to object to jury request for the doctor and witnesses testimony. (Even though she said she believed the witness was the victim of sexual abuse based on what the witness said). The doctors statements didn't rise to commenting on credibility and the lawyers' questioning did not prejudice the defendant.

No error in not providing those transcripts to jury.

State v. Register. Appeal from rape, statutory sex offense, and indecent liberties convictions.

No error in court order of "sequestering" the defendant's family, but not the victim's family members, during the victim's testimony, on grounds of potential intimidation of the 13 year old witness. Judges have expanded authority, under 15-166, to clear the courtroom except for court personnel in sex offense cases. Defendant does not assert that he was denied 6th right to public trial, only his right to fair trial. No basis for this fair trial right to have family present and was not made at trial, so will not consider the constitutional claims. Does not believe 15-166 precludes such a ruling.

No error, under 404(b), of state putting on 4 witness saying the defendant when they were children. Even though they were 14, 21, and 27 years prior, they were substantially similar to the charged conduct (similar age of the girls, that defendant was living in home in step-parent-like relationship, abuse occurred when wife was at work, and abuse usually occurred in wife's bed) and thus relevant. "She described the rubbing; and, I would say that, as far as vaginal penetration, since the oral penetration — well, I'm not discussing that. I mean, I felt that that was very graphic and believable." Trial court erred in denying defendant's motion to strike that statement, but such error was harmless (as jury could assess credibility for themselves, genetic material found in child's underwear, and the strong 404(b) evidence).

State v. Van Pelt. Appeal of convictions for misdemeanor stalking and harassing phone calls, on claim of insufficient evidence. Defendant, out of the blue, sent the victim flowers, a poem, then constantly paged him and called him at home at night. Called his wife and said, "Your husband doesn't love you. He's having an affair with me." Defendant also filed a complaint against him to the medical board.

Sufficient evidence here. 1) Stalking is defined as: "following, being in the presence, or harassing another person with intent to "place in fear or cause to suffer emotional distress." The conduct here was sufficient to place in reasonable fear. 2) Harassing phone cal is "calling another person repeatedly for purpose of annoying, harassing, embarrassing, etc." The warrant listed only calls to the office, not calls to the home. The office calls were enough and no requirement to prove they actually spoke.

State v. Williams. Appeal of sex offense and crime against nature convictions.

Defendant alleges state failed to prove sex offense. 2d Sex offense is proven if: (1) defendant engaged in sexual act; (2) with a mentally disabled, incapacitated, or physically helpless person, and (3) knew or should have reasonably known the other person was disabled.

Victim had IQ of 56. Court found him mentally disabled and that defendant should have known.

State v. Williamson. Appeal of robbery with dangerous weapon and denial of MAR. No error.

1) Court did not err in failing to instruct on common law robbery, on argument that gun was inoperable (based on evidence presented in MAR). Where no proof offered at trial, gun presumed to be operable and loaded.

2) Court didn't err in denying MAR. Defendant argued that the newly discovered evidence (of inoperability) should result in relief. To obtain relief on new evidence, must prove that: (1) new evidence, (2) probably true, (3) competent, material and relevant, (4) due diligence to search was used at trial, (5) not cumulative, (6) not only impeachment, and (7) different result would have prevailed. Trial court ruled that failed to meet #2, 4, and 7.

Probably True: Although evidence of inoperability was uncontradicted at hearing, witness Lemon was the only source and made no mention of this in initial police interviews. Trial court made reasonable determination.

Due Diligence: Legal assistant at the DA's office found the info out and sent to counsel and it arrived the day before trial, but the defense didn't check his mail and missed it at trial. This is not due diligence. Court found that nothing wrong with DA never mentioning this at trial to court or counsel.

No error in trial court failing to enter written order. McHone's reference that 15A-1420(c)(7) is "a directive to the trial court to make written conclusions of law and to give its legal reasoning for entering its order." This is dicta. Here, court put oral findings of fact and conclusions of law on the record. No reason why this is inadequate.

Judge Wynn dissents on the MAR issues.

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