Tuesday, December 7, 2010

NC Court of Appeals Criminal Decisions (Dec. 7, 2010)

Reversals and Other Interesting Cases

State v. Johnson.

Insufficient evidence of attempted robbery with a firearm, where no evidence of intent to rob. Defendant came to the victims door with a gun and tried to get in and a firefight ensued. Only evidence offered by the state was that the Defendant came by a few days before, presumably casing the joint. This was insufficient evidence of intent.

Insufficient evidence for felony breaking and entering, as no, based on above, inadequate evidence of intent to rob (the charged predicate felony). Jury verdict of misdemeanor entering (which has no intent to commit a felony inside requirement), stands.

State v. Potts. Appeal of possession of cocaine case, where cocaine was found in a size 8 1/2 Nike shoe.

(1) Officer testified that he knew what defendant looked like based on seeing pictures from prior arrests. Issue not preserved because no proper objection.

(2) Officer testified that another officer told him that the defendant wore an 8 1/2 shoe. Court found that this was offered as corroboration of "anticipated testimony" (that seems like a violation of the rules of evidence anyway, but....). The other officer later testified and did not say that the defendant wore an 8 1/2 shoe. Because this impermissible hearsay was admitted and is prejudicial, the court orders a new trial.

State v. Williams. Conviction for possession with intent to sell cocaine and habitual felon.

SBI analyst testified about the cocaine being cocaine. Turns out, she wasn't the one that performed any of the test and was just reading someone else's result. This violates the 6th Amendment right to confrontation (Crawford).

New trial.

Other Cases

State v. Baker. Appeal of carrying concealed gun and possession of firearm by a felon.

Defendant was spotted on foot near a nursing facility that had been broken into the night before. Officer approached defendant and asked him questions. Defendant smelled of alcohol and was "looking around." The officer did a pat down and found a gun.

The trial court failed to make findings of fact. There were material conflicts in testimony on whether or not the defendant was seized. (The officer turned on his blue lights before approaching defendant, a total of four officers were present (show of force)). The trial court's failure to make findings of fact is thus fatal to the validity of its denial of the defendant's motion to dismiss.

Remanded for findings of fact.

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

No error in failing to instruct on 2nd degree murder. Defendant was high on crack when he hit his wife numerous times with a 2x4, stabbed her, and slit her throat, causing her death. Court did not err in failing to instruct on 2nd degree murder, because ample evidence of premeditation were present--in the brutality of the crime and prior threats--and intoxication alone doesn't negate this.

No error in submitting photographs of the decomposing corpse (the body wasn't found for some time) under 403. These appropriately illustrate testimony of detectives who found the body.

State v. Blackmon. Appeal of convictions for felony larceny and habitual felon. Defendant stole a computer and, because he was a habitual felon, was sentence to 10+ years.

Defendant failed to preserve his motion to dismiss by not renewing his motion at the close of all evidence.

No IAC for this, as there was sufficient evidence for the jury to find the larceny.

No inconsistent verdicts in the jury hanging on breaking and entering, but convicting on felony larceny (that was a felony on the theory that the larceny was committed during a breaking and entering)..

State v. Clark. Appeal of judgment for break and enter motor vehicle, attempted larceny, injury to personal property and habitual felon status.

The indictment charged defendant with breaking and entering a motor vehicle, with intent to commit larceny of the same motor vehicle.

To be convicted of felony breaking and entering a motor vehicle, the defendant must have the "intent to commit any felony or larceny therein." Defendant argues that the "therein" requires the intent to commit a felony or a larceny other than theft of the car, as a theft of a car could be completed not within the confines of the car. Court rejects this argument. No reason a defendant cannot be charged with both felony larceny of a motor vehicle and felony breaking and entering a motor vehicle with the intent to steal the vehicle.

Sufficient evidence for felony larceny in the truck being worth more than $1,000, as the owner and two officers both testified they believed it was worth more than $1,000.00.

State v. Crandell. Defendant and another man had a shootout at a BP. An innocent bystander was shot and killed. Defendant convicted of 1st degree murder.

.32 and .40 caliber shell casings were found at the scene. A .40 caliber pistol was later seized from the defendant and a .32 at the other man's residence.

Both a .40 caliber (11.4g) and a .32 caliber projectile (4.54g) was found in the decedents car. A fragment of 6.2g was found in his head. An SBI lab agent testified at trial that the fragment was consistent with a .38 caliber or larger gun.

1) Sufficient evidence of guilt. Sufficient evidence presented showing Defendant was one of the shooters and was using a .40 caliber. Evidence sufficient on malice, premeditation, and deliberation as the shooting arose from a confrontation at a club, earlier in the evening, and the defendant firing at the other man at the BP first, without further provocation. This is sufficient for premeditation and deliberation--intent that then transfers to the decedent.

2) No error in allowing the lay testimony of a detective about the relative weights of the bullets.

3) No error in allowing SBI expert to testify that the bullet in the decedents head could not have come from a .32, as it was heavier than a 32 and was just a fragment.

State v. Daniel.

Appeal of DWI conviction.

A DWI defendant has a right to pretrial release if "A sober, responsible adult is willing and able to assume responsibility for the defendant." Under State v. Knoll, a DWI must be dismissed if defendant's detention is prolonged in a way that prejudices a defendant's ability to gather evidence.

During arrest, the officers gave defendant's car to a friend of hers, who drove directly to the jail.

Here, defendant was detained nearly 24 hours, even though a friend came to get her within an hour or two of her arrest. The magistrate wouldn't release her to the man, because he had alcohol on his breath and stated that he would only release her to a woman. While the detention was inexcusably prolonged, the court found there was no prejudice, because her BAC was .17, she said no when offered to contact an attorney, and her friend was given access to her and able to observe her during those critical post-arrest periods.

Judge Elmore Dissented:

The Defendant's friend was a sober, responsible adult, evidenced by the officers releasing the car to him. The magistrate refused to release her to her friend solely on the basis of his gender, not his condition. This failure to release caused irreparable prejudice, as any opportunity to gather evidence that she was not legally drunk was gone by the time she was released the next day.

State v. Dobbs. Defendant convicted of possession with intent to sale a sch. III substance (hydrocodeine), sale of a schedule III controlled substance, and trafficking in a sch. III controlled substance. Defendant sold 8 hydrocodeine pills (a prescription drug) to an police agent.

Court found there was sufficient evidence to prove trafficking by sale or delivery of 4-14g of hydrocodeine (8 pills. Yes, 8 pills is "trafficking"). Defendant was sentenced to a total of 70-84 months in prison on the 3 counts arising out of the one sale.

State's evidence rested on a lab analyst who weighed the pills, checked them against the book, and conducted scientific tests of one of the pills. Defendant argues that this was insufficient, since she didn't perform scientific tests on all the pills. Defendant did not cross on the sufficiency of the sample or argue that it was insufficient. As such, the argument is dismissed. Even if he had, the court went on to find this was a sufficiently reliable sample.

State v. Dubose. Appeal of conviction for conspiracy and for firing a gun into occupied building.

Facts were that defendant shot at another student outside a school (apparently to scare him as part of gang activity) and the bullets hit a brick a column of the school.

Sufficient evidence of conspiracy where defendant was with others, argued about who was going to shoot the gun, and all went together to do the shooting. Defendant arguments there was no evidence of intent to fire into occupied property, as the victim was standing outside the building. Caselaw establishes that a bullet going into an exterior wall is adequate for shooting into occupied property. Because the victim was standing near the building, there was a substantial likelihood that the bullet would enter the wall. As such, there was adequate evidence of a conspiracy to fire into occupied property.

The court did err for making a finding of the aggravator of gang activity, as there was no notice of this as aggravating and the sentencing was made outside the defendant's present (when the court drafted the judgment). Remanded for re-sentencing

State v. Mackey. Appeal of assault with deadly weapon and discharging a weapon into occupied property.

Held: (1) State failed to give the defendant proper notice of intent to prove aggravating factors for sentencing. The state must give written notice at least 30 days prior to trial. During plea negotiations, the state sent a letter that is not a part of the record. As such, insufficient evidence of the notice. (But noting that a letter could have been adequate notice). Remanded for resentencing.

(2) Because defendant was a passenger in a car and asserted no possessory interest in the vehicle or its contents, he had no standing to challenge the legality of a search.

State v. Treadway. Appeal of conviction for 1st degree sex offense.

(1) No error in admitting testimony of child's grandmother that the child told her she was molested, as it was admissible for the non-hearsay purpose of explaining the grandmother's subsequent conduct--telling the child's parents so medical treatment could be obtained. Further, these statements corroborate the child's trial testimony.

(2) Social worker interviewed the victim and diagnosed the victim with "sexual abuse." This was improper, as there was no physical evidence of abuse and such testimony essentially means, she talked to the victim and believes her. She also testified that the child's behavior was "consistent with a child who had been sexually abused." That was an appropriate, permissible statement. Because of this and other strong evidence, the admission of the "sexual abuse" diagnosis was not plain error.

(3) The indictment specifically alleged that the sex offense occurred by digital penetration. The jury instruction did not specifically include a requirement that the jury find digital penetration. The trial court may only instruct on sex acts supported by the evidence. The fact that the trial instruction was on digital penetration, as well as other sex offenses, was not error.

(4) Satellite-Based Monitoring: the court incorrectly found that 1st degree sex offense was an aggravated offense (mandating lifetime monitoring). (Aggravated offenses under 14-208.6(1a) required the child to be under 12, 1st degree sex offense allows children under 13). Remanded for re-sentencing on the other possible SBM grounds.

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