Tuesday, November 2, 2010

NC Court of Appeals Criminal Decisions, November 2, 2010

On November 2, 2010, the North Carolina Court of Appeals issued five decisions for publication.

State v. Banner. Defendant was arrested on an old warrant that, due to clerical errors, was erroneously issued. During search incident to arrest, drugs were found. Held: Underlying warrant was not invalid, as it was based on an unresolved failure to appear. The fact that a clerk as failed to recall the warrant after learning it was erroneously issued does not invalidate it. (Here, the defendant received the FTA because he was in jail in another county on unrelated charges and the Department of Corrections had contacted the clerk and informed them of such, assuming the FTA would be recalled).

State v. Bordeaux. State appeal of suppression of confession in a robbery case. Defendant's interrogation was videotaped. During the interrogation, the officers made threats to connect defendant to an unrelated murder case and made promises and threats that he needed to cooperate if he "wanted any chance to live a normal life." Such questioning was intended to overbear the defendant's will and, although he was warned and waived Miranda, the confession was nontheless involuntary. Upholds suppression.

State v. Boyd. No error in using DNA sample taken from defendant while in Ohio. Defendant alleged he consented to taking the blood due to officer's deceit, as officers never told him he was under investigation for rape. Consent must be freely and voluntarily given. There is no requirement that it be knowing (i.e., unlike confessions, officers don't have to inform you of your right to refuse, your right to a lawyer, etc.). The fact that the defendant was not told the blood was wanted in a rape investigation does not matter.

No error in failing to replace a juror who sent out a note saying she thought the defendant's accent was "fabricated" in some trial evidence. This merely suggests the juror was weighing evidence/credibility, not doing anything inappropriate.

Error in sentencing as prior record sheet included a conviction that occurred after this case (unclear if this was a typo on the sheet). But, since the sheet was the only evidence presented, those points are no good. Remanded for resentencing.

State v. Szucs. Defendant appeals felony larceny, possession of stolen goods, and breaking and entering convictions, where property stolen was electronics and loose change.

Sufficient evidence presented where his truck was found parked in the driveway, a man matching his general description holding electronics was seen; the man dropped the electronics and jumped the fence; a police dog tracked him, then lost the trail near Thermal Rd.; officer noted fresh marks in the mud, defendant was found, muddy, on thermal road; defendant had a leatherman tool in his possession; had $30.00 in change; and roommate found with an electronic device.

No plain error (under 403) in police statement that defendant was identified using mug shots.

Error for entering judgment on both felony larceny and felony possession of stolen goods. Cannot enter judgment on both, if it's the same good. Arrest judgment on possession of stolen goods.

State v. Yonce. Appeal of finding of willful probation violation. Defendant's appeal was untimely.

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