Friday, October 22, 2010

NC Court of Appeals Criminal Decisions (10/19/2010)

Reversals and Other Interesting Cases.

State v. Nabors. Drug case should have been dismissed due to insufficient evidence.

Only evidence that drug was cocaine was testimony based on visual observations. Proof that substance is illegal drug must be with expert testimony "based on a scientifically valid chemical analysis." Vacated.

Other Cases.

State v. Dye. Appeal of conviction of statutory rape, rape, and incest. Defendant appeals, arguing state pediatric expert testimony was improper and mistrial should have been granted.

Expert testified that the medical evidence was "consistent" with the child's disclosure of sexual assault. Failed to preserve whether this improperly opined on a witnesses truth.

Expert testified that there was little "secondary gain" (i.e. benefit to the child) for the sexual disclosures. Defense argues that this was plain error and an opinion on the truthfulness of the witness. Not plain error.

Finally, during the defense closing, the victim interrupted and said, "You shut up, how dare you say I'm unbelievable" etc. Defense at trial told the court it was not moving for mistrial. No error in court's failure to intervene ex mero motu.

State v. Gabriel. Appeal of 1st degree murder conviction.

Instruction on acting in concert was supported by the evidence. The fact that the co-defendant committed all the acts constituting underlying crimes does not mean no acting in concert instruction is impermissible. All that is required to be guilty under theory of acting in concert is presence and a common plan, even if the co-defendant commits all the criminal acts.

State called a witness Brown, who denied talking with the defendant and telling him to bring a gun, then impeached him (including putting in transcript of prior statement) with his prior statements saying that the he did call the defendant and ask him to bring a gun. HELD:
  1. This was not an improper proving up of a collateral matter (you can't prove up collateral matters with prior inconsistent statements). A matter is generally considered collateral if it doesn't relate the crime and doesn't impeach in any way other than that it is contradictory. Here, the matter was non-collateral (whether he called and told Defendant to bring a gun). As such, it comes in.
  2. No violation of rule 607. Under rule 607, you cannot call a witness and, under the mask of attacking credibility, put in otherwise hearsay statements. Defense argues that, because prosecutor was not surprised, he couldn't put in these statements under Rule 607. The Court distinguished prior, similar cases, on the very thin ground that in this case, the court issued a limiting instruction and that the evidence was important to the state's case, and there was no evidence that the state already knew the witness would not cooperate.
  3. No 403 violation.

State v. Ross. Appeal of conviction for delivery of counterfeit controlled substance and habitual felon. Defendant engaged in hand-to-hand sale of a "20", which the detective informs us is a street term for a $20 crack rock, which turned out to be a white rock-like substance that was not cocaine. Defendant was sentenced to 107 months minimum (because of the habitual felon status). (That's right, nearly 10 years for selling a fake $20 crack rock to a cop.)

Jury sent out 3 notes telling the judge they were hung-- 2 of them saying they were hung at 11-1 and each time noting that this was "final." Finally, judge went into jury room and asked foreman, in front of jury, if they were making progress. He said, "little" and then other jurors said, "none." Judge kept sending them back after telling him the length of their deliberations was in his discretion (1st time), the Allen charge (2nd time), and nothing (3rd time). No abuse of discretion.

Court noted that "we have difficulty imagining circumstances in which it would be appropriate for the trial judge to enter a jury room during deliberations..." So the court "admonishes" the trial judges not to do that, but essentially found no error (perhaps imagining a circumstance where it was appropriate?)

State v. Williams. After conviction for indecent liberties with a minor, court ordered defendant to enroll for life in satellite based monitoring, on ground that he was a recidivist. While some of the courts finding were not supported by evidence, the defendant still meets the criteria for enrollment (sexually violent offense and classification as recidivist).

State v. Wilson. Defendant, while being arrested on warrants, resisted. He was tasered, but it failed, then pepper sprayed. He got the officers gun away from him and shot (and missed him). He was convicted of assault on an LEO with a firearm, possession of a firearm by a convicted felon, and violent habitual felon. He was sentenced to life without parole. Defendant represented himself at trial.

1) No plain error 403 or 404(b) violation for telling jury about warrants officer was trying to serve during incident. Generally, prior bad acts can't come in to show defendant's bad character unless they are substantially similar or relevant to some other part of the case. Here, the warrants explained the basis for the confrontation and were a relevant, necessary part of the story.

2) No plain error in admitting the internal affairs investigation that found no wrongdoing by the officer in macing/tasing the defendant., in part due to overwhelming evidence of guilt.

Rule #1: When you're facing life without parole, don't represent yourself.


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