Tuesday, January 4, 2011

NC Court of Appeals Decisions, January 4, 2011

State v. Cole. Durham County. Appeal of accessory after the fact to 2d murder and robbery.

1) No jurisdictional problems with trial for accessory after the fact to 2d murder where indictment said 1d murder. This indictment provided adequate notice to prepare for the defense, as the elements of the underlying felony are not essential elements for the crime of accessory after the fact.

2) Sufficient evidence for accessory after the fact, even though assistance was rendered after the victim was shot, but before the victim died, as the reasonable inference would have been that the defendant knew precisely what had taken place.

3) No error in courts failure to instruct on the meaning of "malice" and the legal concept of "mere presence" (that mere presence is not enough to be an accessory). Mere presence only applies to accessory before the fact, not after the fact. Not plain error to fail to instruct on malice, as there was not request.

4) Not plain error to allow detective to testify that, upon observing the scene, he believed a homicide and robbery had occurred and two people were involved. This was not a legal conclusion, merely testimony about police procedure.

5) Not plain error under 404(b) for witnesses to make passing references to defendant's prior record (e.g. I know defendant since he came home from prison).

6) Not plain error when prosecutor, in closing, referred to the testimony (above in 5).

State v. Dewalt. Forsyth County. Appeal of a felony speeding to elude arrest case.

Speeding to elude arrest is a felony (class H) if two of the following aggravating factors are present:
  • Speeding more than 15 MPH over limit
  • Intoxicated or BAC of .14
  • Reckless driving
  • Negligent driving leading to an accident with $1000+ damage or injury
  • Driving while licensed revoked (DWLR)
  • Passing a stopped school bus
  • Driving with a child under 12 in the car.
First, Defendant argues that judge failed to instruct for aggravating factor of DWLR a requirement that the driving occur on a highway (an element of the separate crime of DWLR). Here, the aggravating factor is separate from the crime of DWLR and only requires proof that the driving occurred while license was revoked, not of the separate requirement that it occur on a highway as defined by the crime.

Second, no error in failure to instruct on the lesser included of misdemeanor speeding to elude arrest, as the evidence did not support such a finding (based on the DWLR and reckless driving).

Defendant was sentenced to 8+ years as a habitual felon.

State v. Kerrin. New Hanover County. Appeal of probation violation order and license revocation order. Remanded for new findings, since the court failed to make required findings of fact under 15A-1331A.

Under 15A-1331A, upon conviction of revocation of felony probation, the court may revoke state licensing privileges (including driver's licenses) for the probationary period if it makes findings that the individual didn't make "reasonable efforts" to comply with probation. Here, no such findings were made.

State v. Mackey. Mecklenburg County. Appeal of discharging weapon into occupied property and assault with a deadly weapon (AWDW).

First, defendant argues state failed to give proper written notice of its intent to seek to prove aggravating factors during sentencing. The state must provide 30 days written notice of intent to seek aggravation. During plea negotiations, the sent a letter stating that it, if the plea wasn't sought, it would have sought 2 aggravators. This was insufficient notice. It does not indicate this was a notice and there is some doubt about whether fax service was adequate. The form for providing notice, AOC-CR-614, indicates on it that service must be by personal delivery or mail. In total, the court was not satisfied that notice was effected. Trial court erred in giving an aggravated sentence.

Second, no error in denying the motion to suppress. Here, evidence was obtained during a car stop (running a red light) and search incident to arrest. Under Gant, that search may have been illegal. The trial court held, however, that the defendant was a passenger and had no standing to challenge the search. Here, defendant was a passenger who didn't own the vehicle and asserted no possessory interest in the vehicle or its contents. As such, no standing to challenge the search.

State v. Mbacke. Forsyth County. Appeal of denial of MAR.

Defendant filed an MAR based on Gant, a newer Supreme Court case that says you cannot search a car incident to arrest, if the defendant is outside of the car. A car can only be searched if probable cause exists to believe there is evidence of crime in it.

Here, defendant was arrested for DWLR and possession of a concealed weapon (on his person). All the evidence that could exist for those crimes are on his person, not in the car. As such, it was improper, under Gant to conduct the warrantless search of the car.

Dissent by Stroud.

State v. Oakes. Hertford County. Appeal of 1st degree murder conviction.

First, statements of prosecutor analogizing defendant to a tiger on a nature show. While calling defendant's animals is "strongly disfavored" the analogy was appropriate in this context, as it explained premeditation and deliberation.

Second, no error in court refusing to qualify defense expert in "use of force science" (but allowing him to testify anyway). This expert was important to p&d theory. Court found no prejudice, as the jury convicted both on p&d and on the felony murder theory.

Third, no error in the trial court's failure to recuse itself. After review of transcripts, COA didn't find the judge as overly "dismissive" or disrespectful to the defendant.

State v. Parlee. Iredell County. Second degree murder conviction.

Defendant sold 1 oxymorphone pill to one of two minors for $20. Defendant told them it was pretty strong and not to take the whole thing at once. They both took half, and the one that didn't pay died. Charged and convicted of 2nd degree murder based on sell of inherently dangerous drugs.

First, sufficient evidence presented for 2d murder. Under NC law, murder proximately caused by the "unlawful distribution" of opium-based compounds is 2nd degree murder. Malice can be inferred from the distribution of the substance, as can proximate causation (even if the substance is then transferred to a third party, as here).

Second, no error under double jeopardy of sentencing consecutively for the sale and the murder, as they are not the same offense (each contains elements not included in the other).

State v. Starr. New Hanover County. Appeal of conviction of assault of firefighter with a firearm.

Sufficient evidence presented: evidence that defendant shot at a door from inside while firefighters attempted to break it down.

No error in denying defendant's request to instruct on assault, as defendant did not proffer the request in writing.

No plain error in judge responding to a jury question from the jury room door, where he indicated his intent to do so and defendant did not object (proper procedure is to bring jury into court room to respond to questions).

State v. Walters. Robeson County. Appeal of 1st degree murder conviction.

1) During trial, a state's witness stated she couldn't remember talking to an officer, then submitted her prior statement to an officer as evidence, even though she stated she still didn't remember what she told the officer, even after reading the statement.

First, under State v. Hunt, a party may not impeach using prior inconsistent statements solely for the purpose of placing evidence before the jury that would not otherwise be admissible. They may only be admitted as corroborative evidence (or as impeachment, on cross).

Here, however, unlike Hunt, the witness was not "hostile" and didn't expressly deny the substance of the statements. Rather, she simply couldn't remember. Second, the statement was offered through an officer and used to corroborate the witnesses in court statement (she remembered what happened, just didn't remember the statement). The statement included an "extraneous," non-corroborative statement that defendant and his girlfriend had been fussing and he committed the murder to "take it out on somebody." The court found that, while non-corroborative, it was not unduly prejudicial under 403.

Finally, not a Crawford problem, as the witness was in court and available to be cross-examined.

2) No error in court's giving slight variation of the Allen Charge.

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