Wednesday, January 19, 2011

NC Court of Appeals Criminal Decisions (1/18/2011)

Reversals.

State v. Chlopek. Wake County. Appeal of denial of suppression motion.

Defendant was stopped by police after he was seen late at night in a work truck in the area of a place near where some prior copper thefts had occurred and police thought he "looked nervous." Held: No reasonable suspicion to make the stop. All the facts were general to the area, not particularized to the defendant (late at night, in partially developed subdivision, during time when there had been some thefts).

Reversed.

Other Cases

State v. Blount. Lenoir County. Appeal of judgment on guilty plea to possession of stolen goods and obstruction of justice on subject matter jurisdiction.

First, defendant argues the indictment was insufficient to elevate his misdemeanor charges to a felony. Common law obstruction of justice is normally a misdemeanor. N.C. Stat. 14-3(b) can elevate it to a felony if it is "infamous, done in secret and malice, or with deceit and intent to defraud." To so elevate, the indictment must specifically include this language. Here, the indictment said, "This act was done with deceit and intent to interfere with justice." This language was sufficient to give notice of the felony by "deceit and intent to defraud."

Second, trial court sentenced defendant in the presumptive range, rather than the mitigated range. This is not a problem as the plea transcript only stated that the state would not object to a mitigated sentence, not that one would be imposed.

Third, restitution was inappropriately awarded, as there was no stipulation or evidence offered in support of the state's proffered restitution worksheet.

State v. Jennings. Cabarrus County. Appeal of statutory rape, sex offense, and indecent liberties convictions.

Defendant, who was 28, had a relationship with his 14 year old neighbor. At first, they chatted on-line and talked regularly on the phone, for about 6 months. Then, she snuck out to be with him and they kissed. Then, she snuck out and they had sex. They continued to talk on-line and by telephone. Over the next six months, they met up on other occasions and had sex.

After the year, they broke up. The girl, now 15, was diagnosed with a sexually transmitted disease. Her mother took her to the Child Advocacy Center and examined.

After trial, defendant was convicted of multiple counts of statutory rape/sex offense and sentenced to a minimum sentence of 39+ years.

1) No error in allowing family medicine doctor to testify that her examination of the minor showed no scarring, but that any scarring from sexual intercourse would have probably been healed (thus explaining the lack of physical evidence of sex).

2) No error in admitting evidence of computer forensic examiner who tested defendant's computer and found no sexually explicit information or emails/etc. between the two, but did find that some of his hard drives had been "wiped clean." On direct he was asked if someone who has criminal activity on a computer will usually try to hide it and he said yes. Defendant challenges this under 702 as a non-expert opinion that was not helpful to the jury. Experts can only offer opinions on things within their expertise, not simply make common sense arguments to the jury.

The court made no holdings as to whether this testimony was improper, but simply ruled that the error was harmless.

State v. Williams. Martin County. Appeal of denial of motion to suppress.

First, police had reasonable suspicion to stop the vehicle (in which defendant was a passenger). Basis for stop: police mistakenly believe the driver was a different person, who had his license revoked, and had been tipped by 3 confidential informants that there were drugs in the car.

Informant's tip can provide reasonable suspicion if it has sufficient "indicia of reliability." Here, they did. Two were long-time informants who had previously supplied reliable information, the basis of knowledge for the 3rd informant was actually seeing the defendant sell drugs, and there statements were corroborated (said defendant and another man in black SUV sold drugs at the holiday in and police saw defendant and a 3rd man in a black SUV going in and out of the holiday inn and saw known drug users coming and going at the holiday inn).

Police good-faith mistake as to identity of driver does not negate validity of the stop. Under the totality of circumstances, reasonable suspicion existed.

Second, defendant argues that police exceeded scope of his consented to search by searching his mouth and choking him (because they believed he swallowed evidence). When officers observed defendant try to swallow something, it gave them probable cause to believe he was swallowing drugs and exigent circumstances (destruction of evidence) to conduct a warrantless search of his mouth. This probable cause have basis for search separate from the consent (as such, the exceeding the scope issue is not relevant).

Police good faith belief teh driver

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