Reversals and Other Interesting Issues
State v. Dennis Blackwell. Appeal of conviction for cocaine possession. Was not given notice of state's intent to use lab reports to prove it was cocaine. New trial.
State served notice on a prior lawyer before he was appointed and never gave it to the retainer lawyer who took over the case 2 days after the appointment. When the notice was served on the prior attorney, he was not yet the attorney of record.
Under 90-95(g), the state must notify of it's intent to use lab reports (in lieu of live testimony) 15 days before trial and defense must object 5 days before trial, otherwise it can come in. Here, notice wasn't given 15 days before (because given to wrong person) and the lab reports should not have come in. New trial.
State v. Curtis Cowan. Defendant not given proper notice for a satellite-based monitoring hearing. New hearing ordered.
1) Defendant was sentenced for a sex offense after the enactment of the SBM statute (14-208.40B). Then, after judgment, state noticed him for an SBM hearing. Defendant first argues that 14-208.40B only applies to cases sentenced before the enactment and, basically, if you don't get SBM in your judgment for cases after the effective date of the statute, they can't use it later to add SBM to your situation.
Ruled: Even if you weren't evaluated for SBM at time of sentencing, the state can use this provision to come back and put you on it later.
2) Not an ex post facto violation because lifetime SBM is not punitive. Rather, it is regulatory.
3) In determining if the offense was committed against a minor (one of the conditions of SBM), you look at the elements of the crime and, here, solicitation of a minor does count as involving "the physical, mental, or sexual abuse of a minor."
4) Defendant did not receive adequate notice of the basis for DOC's preliminary determination that he should enroll in SBM. The statute requires notice. The notice must include the category that Defendant falls into that makes him eligible and briefly state the factual basis. Here, the notice simply said: you meet the requirements and you have a hearing scheduled. This was inadequate.
State v. Melvin Ferguson. Appeal from murder conviction, 1st degree found by premeditation and deliberation and felony murder.
1) Defendant convicted on felony murder theory because, after killing the defendant, he stole his car. This is a killing in the course of a felony (armed robbery) because it was part of a course of conduct including a felony, even though the felony was committed afterwards. Rejects the "afterthought" theory.
2) Sufficient evidence of premeditation and deliberation. Defendant alleges imperfect self-defense. Factors for p&d: "(1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim’s wounds." Here, defendants subsequent concealment of evidence, killing over a drug dispute, and the 79 stab wounds support p&d.
3) No error in excluding the victims prior sexual conduct and character. No constitutional objection made at trial, so waived. Defendant precluded from putting on that victim was openly gay and liked "straight-type persons," as being relevant to show that he was more likely to sexually assault the defendant. Victim's status as homosexual is not relevant to prove he was the first aggressor in a sexual assault. Nonetheless, harmless.
4) No error in allowing state to cross-examine defendant's psychiatrist on prior murder he committed. Psychiatrist theory was that the victim's sexual advance triggered a traumatic reaction and he had not planned the murder. Because the psychiatrist reviewed documents on the 2005 homicide in making his conclusions, the defendant opened the door by putting him on.
5) While admission of "victim impact testimony" in the guilt phase was "likely error", there was no objection and it didn't constitute plain error.
6) Error committed by ordering restitution in the absence of any evidence. Remanded for re-sentencing on this issue only.
State v. May. Appeal of order of lifetime SBM.
Defendant convicted of reportable offense against a minor: indecent liberties with a minor. This is a "sexually violent offense." The erroneous checking of a wrong box by the clerk was a clerical error. Remanded for limited purpose of checking correct box and correcting record.
State v. Shadeek Pittman. Defendant convicted for 1st degree murder. Basically, rode his bike to defendant's house to resolve dispute over a wallet and shot and killed him.
Defendant claimed self-defense, based on an on-going dispute and seeing the victim reach for something, although the victim had no weapon.
1) Trial court did not err in failing to give a self-defense instruction. No evidence of reasonable fear. Never seen victim armed with a weapon. While victim had threatened the defendant repeatedly, he had never threatened him with deadly force or even attempted to harm the defendant. Defendant could not reasonably use deadly force.
State v. Brian Reavis. Sex offense and burglary conviction.
1) Confession: defendant failed to file a motion to suppress before trial, as such, his objections at trial did not preserve the claim.
2) No error in admitting defendant's prior offenses, where defense opened the door on direct of their witness by inquiring about them.
3) Sufficient evidence of nighttime requirement for burglary, where victim called 911 after her attack at 5:42am, even though testified that "the light was breaking through." Sun did not officially rise that day until 6:44am. Definition of "nighttime" is: "that time after sunset and before sunrise when a man's face cannot be identified except by artificial light or moonlight." Sufficient evidence presented for jury determination. Not plain error for judge to fail to give instruction on nighttime. Not IAC for failing to request, as such error was harmless.