Thursday, February 3, 2011

NC Court of Appeals Criminal Decisions, February 1, 2011

Not much interesting in here...

State v. Clyde Milton Boyd. Mecklenburg County. Appeal from robbery with a dangerous weapon and conspiracy convictions (84 - 110 M)

Victim was robbed by two men, with a gun. State's evidence was: (1) Victim identified defendant during a lineup, saying he was 95% sure.; and (2) a DVD of defendant's statements to police, played in rebuttal after defendant testified.

First, no objection to the video's admission, so claims relating to it (statement of detective not available, questioning about prior arrests, detective's opinions, etc.) are not preserved and do not constitute plain error.

Second, sufficient evidence for robbery conviction presented here (i.e. eye-witness identification).

State v. Miller. Rowan County. Appeal of misdemeanor attempted sexual battery satellite based monitoring (SBM) order.

First, district court lacked subject matter jurisdiction to order defendant to enroll in lifetime SBM.

Second, because the issue came to superior court on appeal, and this appeal was of a district court civil enrollment order--which must be heard in the court of appeals, the superior court lacked jurisdiction to hear the SBM order. Where the case reaches the superior court through improper channels, it must be vacated.

Third, SBM does not violate ex post facto laws because it is a civil regulatory scheme.

Fourth, the court notes that ineffective assistance of counsel claims are not available in SBM cases, because they are civil appeals.

State v. Williams. Guilford County. Appeal of 1st degree murder, robbery with a firearm, and conspiracy.

First, defendant moves to suppress his statement. Defendant, who was 17, asked for his mother during his Miranda warning. The officer's asked him how to contact his mother, then the defendant asked the officers when they were going to talk to him about the murder. The officers told him that they couldn't talk to him about it until his mother arrived. Defendant then said he didn't want to talk about the murder in front of his mother, signed a juvenile waiver, and confessed.

Once a juvenile asks to speak to his guardian, this is an assertion of the right to silence and he cannot be further questioned, unless the defendant initiates further communication. Here, defendant initiated further communication. As such, no error.

State v. Ziglar. Rockingham County. Appeal of felony death by vehicle conviction.

Felony death by vehicle is a class E felony. A person is guilty if they kill another person unintentionally, while drunk driving.

Defendant was drunk (.267 BAC) and speeding, crashed, and killed a passenger in his car.

At sentencing, the state requested sentencing in the aggravated range, citing two aggravating factors: "knowing creation of risk of death by means of a device normally hazardous to the lives of more than one person" and "using a deadly weapon."

Jury found aggravating factor of "knowing creation of risk of death..." and mitigating factor that the victim was more than 16 years old and a voluntary participant in defendant's conduct.

The Judge ruled that the factors "essentially cancel each other out" and sentenced the defendant in the presumptive range to 34 to 50 months.

1) State objected to defense question to defendant that "If brakes had been working, would you have been able to stop?" The court sustained the objection as speculative. The court upheld this decision, finding that the defense did not lay a proper foundation for the question (that defendant had ever perceived the ability to stop his car under similar circumstances).

2) No right to appeal sentencing issue without writ where sentence is in presumptive range.

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