Monday, December 27, 2010

NC Court of Appeals Criminal Decisions, December 21, 2010


State v. Wilkins. Nash County. Appeal of felony possession with intent to sell marijuana.

Defendant arrested on old warrants during a traffic stop. The officer found a small plastic bag in the defendant's pocket with three smaller bags of marijuana. The total weight was 1.89 grams. The officer also found $1,264. The state indicted the defendant on felony possession with intent to sell.

The Defendant testified that these were 3 "nickel bags," purchased for personal use. He stated the $1,264 was a $264 check he had cashed and a $1,000 recovered cash bond that his mother had given him. He was carrying the cash because he knew he had warrants and wanted to be able to bond out of jail.

Held: Insufficient evidence of possession with intent to sell, remanded for resentencing on the misdemeanor simple possession (i.e. 6-8 month sentence changed to 1-30 day sentence).

Intent to sell can be inferred from the (1) the packaging, labelling, or storing of controlled substances; (2) the defendant's other activities; (3) the quantity found; and (4) the presence of cash or drug paraphernalia.

Applied to these facts:

(3) only 1.89 grams found. Less than 1/2 a pound is not sufficient, alone, to withstand a motion to dismiss. State v. Wiggins (1977).

(1) Packaged in 3 separate "nickle" bags. Division in cases with such a small amount of marijuana (less than $30.00) cannot give rise to an inference of intent to sell.

(4) Presence of cash only is circumstantial evidence if the presence is unexplained. Here, the cumulative evidence was insufficient. If there had been greater weight or other incriminating circumstances, the cash may have been an incriminating factor.

(2) No damning evidence of defendant's other conduct.

State v. Chillo. Pitt County. Appeal of conviction for breaking or entering a motor vehicle.

1) Indictment stated that defendant broke into the car that was the "personal property of D.L. Peterson Trust." For property crimes that require intent to permanently deprive (i.e. larceny, robbery), the state must specifically allege the ability of the owner, if it is a corporate form, to own property. This can be done by using terms like "INC" or by specifically alleging it as a corporate form capable of owning property. Defendant challenges indictment for not specifically alleging that D.L Peterson Trust is capable of owning property. Court ruled that the term "Trust", like "INC", denotes a specific legal entity that is capable of owning property. As such, the indictment was not defective.

2) Motion to dismiss should have been granted as there was insufficient evidence of intent to commit larceny (as alleged in the indictment). When the indictment alleges a specific intent to commit a particular felony, as here, the state must show that felonious intent.

Here, the evidence showed the intent to break into the car was to show a friend how to "break glass." Nothing was actually stolen from the car and the only other evidence was statements defendant made to a friend that he had "went into cars" in the same neighborhood before. All they did was break the window, they didn't go into the car. Conviction reversed.

State v. Crowder. Avery County. Appeal of revocation of probation. Defendant revoked for 3 "violations"-- residing in house with a minor child (written on judgment), that he not "be alone with any minor child," and that he not "socialize or communicate with any minor child" (the latter two weren't on the judgment).

Defendant put on evidence that the minor child lived with a grandmother, but would visit the house. The trial court said "He is not supposed to have any children anywhere around him" and revoked him.

Held: Trial court abused its discretion as the state failed to present evidence of a violation of a valid condition of probation. A standard condition of probation for sex offenders is that they cannot reside in residence with children during the probationary period. 15A-1343(b2)(4). This does not prohibit all contact or visitation with a minor, only living in the same house. As such, there was no valid condition that children couldn't be "anywhere around him."

As to the 2nd two "violations", no evidence that defendant received any notice that those were conditions of probation. As such, they are not valid bases for revocation. Vacated.

State v. Jones. Appeal of conviction of cocaine possession with intent to sell.

The State offered evidence of Officer Tucker who stated he was able to identify the substance as cocaine by visual inspection and admitted a chemical analysts report showing the substance was cocaine, all without objection.

This was plain error. 1) under the 6th Amendment, a report of an analyst cannot be entered without their presence for cross examination. 2) Identification of cocaine by visual inspection is unreliable and inadmissible opinion testimony.

Other Cases.

State v. Capers. Cleveland County. Appeal of 1st degree murder conviction.

No error in admitting evidence that, upon arrest, defendant was shackled. Case law forbids allowing a criminal defendant to appear before a jury in bonds. No similar protection, however, from the jury learning that he was in bonds at arrest.

No error under 403 in allowing testimony of officer who said the defendant said, upon arrest, "if [you] would have waited until twelve midnight that we would have been late, and he said that, yeah, I would have been gone and you would have never saw me again." Flight is admissible evidence of guilt. Defendant argues that this was "an empty boast by a shackled man." Nonetheless, the statements shows consciousness of guilt (like flight) and is admissible.

No confrontation or hearsay problem with a victim's (one who got shot but didn't die) mother testifying that victim told her in hospital that the defendant did it.

The court found that this was an exception to hearsay as a presence sense impression, as it was made less than an hour of the shooting, broadening the presence sense impression exception from a few moments to an hour.

State v. Ford
. Mecklenburg County. Appeal of motion to suppress evidence obtained during a traffic stop.

Sole issue is whether the stop was valid. Officers may conduct a traffic stop if there is "reasonable suspicion to believe the defendant committed a traffic violation." Officers saw a car during patrol at 10:00pm, again a little later, and then a third time at 1:45am. The officers followed the car and the license plate appeared not to be lit and he couldn't read the tag. They turned off their lights to verify that the tag lights were out. Then, they stopped the car and cited the defendant for failing to maintain a properly functioning tag light (and eventually found a bunch of other bad stuff and got him for that too).

Defendant put on evidence from the car rental place that the car was fine when the car was rented and when it was returned. Court held that this didn't directly contradict the officer's testimony. As such, sufficient reasonable basis for the stop.

The court also notes that, while the defendant argues the stop was pretextual, the objective facts, rather than any subjective motivation, is the standard the court uses in making these determinations.

State v. Foy. New Hanover County.

During traffic stop for DUI, officer, with defendant's consent, went to his car to get the defendant's cell phone so that he could call his wife for a ride. While there, saw, in plain view a .357 revolver. The officer then arrested the defendant for carrying a concealed weapon and search the truck, finding open containers, drugs, and other guns.

Issue: Upon finding the 1st gun, could the officer continue searching under Gant.

Under Gant, an officer may search a vehicle incident to arrest "if the arrestee is within reaching distance of the passenger compartment at the time of the search or 2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Here, the Defendant was absent, but under prong #2, the officers had reason to believe that evidence related to the charge of carrying a concealed weapon could be found in the truck (i.e. other weapons, a receipt, or other evidence that can show ownership).

State v. Hernandez. Rockingham County. Appeal of convictions for assault with a deadly weapon with intent to kill inflicting serious injury, attempted 1st degree murder, and armed robbery. Challenge to denial of motion to suppress.

Defendant was a passenger in a car during a New Jersey traffic stop. New Jersey officers observed a car following too closing and making erratic lane changes. During the stop, the officer became suspicious because the men (5 Hispanic men were in the truck) gave conflicting stories of the itinerary, had no luggage for their NC to NY trip, and had no identification or driver's licenses. The driver of the car consented to a search, on a Spanish language form. During the search, they found a loaded gun. All men were arrested and, during further search, evidence of the robbery (wallet, jewelry, firearms) were found in the truck.

NC SBI guys flew up to New Jersey and interviewed the Defendant. Defendant signed a Spanish Miranda Waiver and made incriminating statements. Defendant challenges admission of the evidence and the statements, challenging the search and the Defendant's arrest.

1st, traffic stop was legal, as there was reasonable suspicion to believe a traffic violation had occurred--to wit, following too closely.

2nd, stop must not be unreasonably prolonged. The length of detention must be that necessary to deal with the articulable, reasonable suspicion. A basic rule, is you can't ask to search if the only suspicion is the traffic violation. Here, additional suspicion arose based on the inconsistent stories and lack of identification. The length of stop (up to the consent) was an hour and ten minutes. Defendant argues this was unreasonable. Here, delay not unreasonable since all occupants lacked identification and he could not simply issue a citation and let them go on their way.

As such, there was reasonable suspicion to prolong the stop and ask for the search.

State v. Hunter. Union County. In 1st degree murder case, held motion to suppress confession as involuntary was properly denied.

First, no error in executing a search warrant that had the wrong address listed on it. No problem with police executing a one address, even though the magistrate's order indicates that they could search a different address. This was OK because other designations were sufficient to establish with reasonable certainty what premises are to be searched. The warrant gave specific directions.

Second, defendant's Miranda waiver was valid, despite evidence that he had used crack prior to confessing, as the officers reported that the defendant denied being under the influence and the Defendant seemed cognizant during the interview of the meaning of his words.

Third, sufficient evidence of the aggravating factor "extremely heinous, atrocious, or cruel" where the victim was very old, the defendant took advantage of a position of trust, and the death occurred by stabbing, beating, strangulation, and finally impaling with a golf club in the victim's back and chest.

Fourth, no error in failing to grant mistrial after prosecutor called the defendant a "liar" during closing repeatedly. While clearly improper, they didn't reach the level of prejudice necessary to grant a mistrial.

State v. Paterson. Forysth County. DUI appeal. At trial, Defendant informed the judge that he had fired his attorney and wished to proceed pro se. His attorney had not filed a motion to withdraw. The judge continued the case and then allowed the attorneys to withdraw.

The Judge then went over the Defendant's right to a court appointed attorney and then had him sign a form Waiver of Counsel. Defendant signed the waiver, but did not check the boxes the form required for exactly what he was waiving (either appointed counsel or all legal assistance).

First, the waiver form is not mandatory, as long as there is a record of adequate waiver. The failure to check either box does not render the waiver invalid.

Second, the inquiry for waiver was adequate as the judge explained the charges and potential punishments and informed of the right to counsel, even though the specific colloquy laid out in State v. Moore (2008) was not followed.

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