Wednesday, November 17, 2010

NC Court of Appeals Criminal Decisions, November 16, 2010

Reversals and Other Interesting Issues

State v. Charla Dean Davis. Gaston County. Defendant appeals convictions of DWI, reckless driving, felony hit and run, and 2d murder. Drunk driver in a red SUV hit a number of pedestrians as he went over a bridge. A red SUV, with pieces missing that were similar to those at the scene, were found at a man's house who told police that the defendant was driving the car and told him she was side-swiped. Police located defendant the next day and she was in disarray and smelled of alcohol. Defendant confessed to hitting something, but said she didn't stop because her license was revoked and she had one more alcohol class left to get her license back. She admitted to drinking vodka that night. No breathalyzer was conducted. Sentenced to 276 + 42 + 10 months.

First, court erred in allowing a state expert to testify on his opinion of Ms. Davis' blood alcohol level based on "retrograde extrapolation." The expert used this technique based solely on the officer's statement that he smelled alcohol on her breath in the morning and an assumption that no alcohol was consumed after the accident. Held: this is unreliable crap and is inadmissible under 701 and Howerton, NC's expert standard--which is notably more lax than the federal Daubert standards.

This was prejudicial, as the only evidence the state of recklessness for the 2d murder and reckless driving was the alleged impairment.

Second, error under 403 to admit 3 prior DWI convictions that were 18 and 19 years old. Their admission was prejudicial. The DWI from 2 years prior, however, was admissible.

New Trial on 2d murder, reckless driving and DWI. Affirmed on felony hit and run.

State v. Nakia Nickerson. Orange County. Appeal of conviction for possession of stolen goods and habitual felon.

Defendant was stopped in a stolen car. He told the officer it wasn't his car and he could search it. The officer found a gun and the defendant said, not my car, not my gun. Told the officer it was a friend's car, who was too drunk to drive. Said he dropped the friend off at Baldwin Park and kept the car. The officers went to Baldwin Park and couldn't find the defendant's friend. Indicted and convicted for possession of stolen goods.

1) Trial court erred in refusing to instruct jury on lesser included offense of unauthorized use of a motor vehicle. Unauthorized use of a motor vehicle is a lesser included offense of possession of stolen goods.

Possession elements are: possession, of stolen property worth $1000, with knowledge or reasonable belief it is stolen, and with a dishonest purpose. Unauthorized use elements are taking, vehicle, without express or implied consent of owner.

Here, the common elements are: Possession of property (taking=possession) and stolen property (stolen property=property taken without express or implied consent of the owner).

Additional elements that elevate to felony are knowledge that the car is stolen and dishonest purpose.

Here, defendant's statement and other evidence tends to negate the heightened Mens Rea requirement-- knowledge that stolen and dishonest purpose-- rather than just a blanket denial. For these reasons, he was entitled to instruction on the lesser included misdemeanor.

New Trial.

State v. David Franklin Hurt. Caldwell County Appeal from 2d murder conviction. Defendant appeals aggravated sentencing based on jury's finding that the murder was especially heinous, atrocious, or cruel.

Held: Defendant has a right, under Blakely, to confront witnesses against him at a sentencing trial under the 6th Amendment. Applies to all sentencing proceedings where a jury makes a determination of facts that, if found, increase the defendant's sentence beyond the statutory maximum. Trial courts admission of hearsay during the aggravation phase constituted error.

Remand for new sentencing hearing.

Other Cases


State v. Jerry Wayne Sanders. Carteret County. Appeal of conviction for assault with a deadly weapon inflicting serious injury (AWDWISI) and conspiracy to commit AWDWISI.

Sufficient evidence for conspiracy here. Defendant and a group of his family members went to one persons house to assault him. After they were told to leave, the rowdy group drove away and an on-looker chastised them. They then stopped their car, got out, and beat him up. These facts, taken together, show the men formed an implied agreement, however impulsively, to assault the onlooker. The jury did not use the wrong conspiracy--the agreement to beat up the first guy--to convict for the spontaneous assault. Rather, there was sufficient evidence to show that this group assault was also the product of a conspiracy.

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