Wednesday, October 13, 2010

NC Court of Appeals Criminal Decisions, October 5, 2010

Reversals

State v. Nakia Nickerson. Appeal of possession stolen goods and habitual felon convictions.

Facts: Defendant was found driving a stolen car. When stopped he said, "this isn't my car, you can search it." Told the officer it was a friend's car, who was too drunk to drive. Defendant requested instruction on lesser-included unauthorized use of a motor vehicle.

Felonious possession of stolen goods requires proof that: (1) possess personal property; (2) worth more than $1,000, (3) which is stolen, (4) having reasonable grounds to believe it is stolen and (5) acts with dishonest purpose.

Misdemeanor unauthorized use of motor vehicle is (1) taking a motor vehicle (2) without express or implied consent of the owner.

Here: the first element of each is possessing another's property. The "without consent" is the same as "something is stolen." As such, unauthorized use is a lesser included of felony possession of stolen goods--if the state fails to prove the heightened mens rea requirements (reasonable grounds to believe stolen and acting with dishonest purpose). Here, defense statements to police created contradictory evidence on the higher mens rea. As such, court erred in failing to instruct on the lesser included. New trial.

Other Cases

State v. James Junior Blue. Appeal of 2d rape, robber with dangerous weapon, and 1d murder convictions. Defendant came to his grandmother's house, hit her with a pot and a piece of wood and taped her mouth, took money from her wallet to buy drugs, raped her, then killed her.

Sufficient evidence for conviction of 1d murder, despite evidence that defendant was on crack and alcohol at the time and that the murder occurred under passion. State put on defendant's confession that he decided to kill the decedent, contemplated whether he would get caught, and then proceeded. Intoxication is an issue for the jury. This is sufficient evidence.

Sufficient evidence for robbery, even though defendant stated that his grandmother would have given him the money if he'd asked.

No corpus delecti problem for the rape conviction. Under corpus delecti, a defendant cannot be convicted where the only evidence of the crime is his confession. Here, in addition to the confession, there was physical injuries consistent with rape and the presence of sperm found in the victim.

Defendant challenges testimony of Dr. Butts, who testified and gave opinion as to cause of death by reviewing notes of Dr. Trobbiana, who actually performed the autopsy, under the 6th Amendment. This is not a Melendez Diaz / State v. Locklear problem because Dr. Butts was present and personally participated in the autopsy, even though Dr. Trobbiani was the lead.

No problem using short-form indictments for first degree murder, under clear precedent of State v. Allen.

State v. Felicia Clagon and Kristin Wilkins. Appeal of burglary conviction. Burglary is defined as breaking and entering another's residence, at night, with the intent to commit a felony inside. Indictment for burglary is not defective if it does not list what felonious intent the defendant had upon breaking and entering. Here, defendant's intent to commit AWDWISI inside was sufficient for burglary conviction.

Also, co-defendant Wilkins was found guilty under an acting in concert theory. The state did not have to prove that Wilkins has the same specific intent to commit AWDWISI as Clagon to obtain conviction. Rather, her assistance in committing the entry is all that is required for acting in concert. If crimes are foreseeable outgrowth of the common plan, they are chargeable to all participants--regardless of their specific mens rea.

State v. Dennis Wayne Shaw. Defendant entered an Alford plea to second degree murder. Appeal on sentencing issue. During sentencing, the court made statements that the defendant was originally charged with premeditated first degree murder and that the state made a "significant concession" in allowing him to plead to second degree murder. Defendant argues that the court improperly used this as the basis for non-statutorily aggravating the sentence (there was proof of some mitigating factors and stipulation to one aggravating factor).

The Court held that these statement were simply collateral and in response to statements of defense of the defendant's good character and were not improperly considered as aggravators.

State v. Mark Daniel Terry.

1) Defendant made statements to his wife, inside the sheriff's office, that were recorded by surveillance. Held: no reasonable expectation of privacy inside sheriff's office, where cameras and recording devices were apparent, thus no marital privilege.

2) No "knock and announce" problem. When executing a warrant for drugs, the time between knock and announce and entry is shortened due to heightened destruction of evidence concerns.

3) Sufficient evidence to submit constructive possession to jury. To find someone guilty on constructive possession, where drugs are found in an area not exclusively the defendants, state must show access plus additional "incriminating circumstances" that link the defendant to the drugs. Defendant's statement to his wife that, "I'll tell them it was mine" was a sufficient incriminating circumstance to prove constructive possession.

4) Failure to preserve challenge to SBI agent identifying pill as methadose by visual examination only.

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