Wednesday, February 16, 2011

NC Court of Appeals Criminal Decisions (February 15, 2011)

Reversals
State v. Whitted. Cumberland County. Appeal of conviction for breaking and entering a motor vehicle, larceny, credit card theft, credit card fraud, common law robbery, OPFP, uttering a forged instrument, and habitual felon. Defendant was sentenced to 133M + 132M.

The facts of the case involved (1) a "car crash" scam. The defendant followed the victim home and alleged that the victim had bumped her car. While they were arguing, an accomplice stole the victim's purse. Later, the defendant used the victims credit cards at different stores; and (2) stealing someone's purse out of their shopping cart at Wal-Mart.

First, defendant challenges the courts failure to hold, sua sponte, a competency hearing. A court must inquire into competency, on its own motion, where reason to question competency appears from the defendant's demeanor, irrational behavior, or due to prior medical opinions. Defendant had a history of paranoid schizophrenia, which was noted by the magistrate, and there were multiple irrational outbursts during trial. (e.g. "On the third day of her trial, Defendant
refused to return to the courtroom because she felt her rights were being violated, and stated she felt she could rely on her faith. When Defendant was brought forcibly into court, handcuffed to a rolling chair after having been tasered, she chanted loudly and sang prayers and religious imprecations, refusing to be silent or cooperate with trial proceedings.")

This created a bona fide doubt as to her competency, and the trial court erred in failing, sua sponte, a competency hearing. Remanded for retrospective competency determination (if trial court determines that was not possible, then new trial will be necessary).

Second, no plain error in allowing a Detective to "identify" the defendant from a surveillance video.

Third, hearsay statements of defendant's co-defendant were not objected to at trial and not preserved by a plain error assignment and are thus dismissed.

Fourth, no error in allowing defendant to orally waive her right to be present (the habitual felon portion of the trial was conducted outside the defendant's presence).

Under 15A-1011(d), a defendant may waive appearance if: "(d) A defendant may execute a written waiver of appearance and plead not guilty and designate legal counsel to appear in his behalf in the following circumstances: (1) The defendant agrees in writing to waive the right to testify in person and waives the right to face his accusers in person and agrees to be bound by the decision of the court as in any other case of adjudication of guilty and entry of judgment, subject to the right of appeal as in any other case; and (2) The defendant submits in writing circumstances to justify the request and submits in writing a request to proceed under this section; and (3) The judge allows the absence of the defendant because of distance, infirmity or other good cause."

The court ruled that this statute only relates to waiving presence for the entry of pleas, not to other parts of the trial. Her oral waiver was adequate to waive her constitutional right to be present and face her accusers.

Other Cases

State v. Bonilla. Harnett County. Appeal first degree murder conviction, 2 counts of sex offense, and 2 counts of first degree kidnapping.

Basically, facts as found were that the defendant got in an argument with his roommates. He hog-tied and beat up one in another bedroom. Then the defendant gagged the other victim and forced a wine bottle into his rectum then raped him (this roommate survived). While this was going on, the victim in the bedroom suffocated and died.

First, sufficient evidence existed for the first degree kidnapping. A 1st degree kidnapping occurs where there is:
  • Unlawful confinement, restraint, or removal of a person from one place for the purpose of, among other things, doing serious bodily harm or terrorizing the person--i.e. placing them in a high degree of fear.
Sufficient evidence of "intent to terrorize" the surviving victim where, after binding hands and feet, the beatings, sexual assaults, and death threats occurred. Also, there was sufficient evidence of intent to do serious bodily harm as sex assault is serious bodily harm. Sufficient evidence of "intent to terrorize" the decedent, where he was moved to another room, bound with cord and beaten.

Second, no error in allowing 1st degree murder to proceed on the theory of premeditation and deliberation. Here, the decedent was hog-tied and left gagged in the other room after being beaten and kicked. The acts of beating and tying were sufficient to establish premeditation and deliberation.

Third, no error on instructing jury on "consciousness of guilt" due to flight. Generally, instructions on flight can be used to show defendant avoided apprehension if evidence supports that defendant eluded apprehension. Here, defendant left the scene through a window. This was sufficient to support a flight instruction.

Fourth, court properly submitted to the jury, as an issue of fact, whether the wine bottle constituted the use of a "deadly weapon" during a sexual assault.

State v. Garnett. Buncombe County. Appeal of drug convictions.

First, defendant challenges state's expert testimony as to the identity and weight of the "green leafy plantlike substance." This is a Melendez-Diaz challenge, essentially arguing that the testifying expert was simply relying on a non-testifying experts report, thus violating the confrontation clause.

Generally, an expert who's opinion is based “solely” upon the laboratory report produced by a non-testifying analyst violates the confrontation clause (Galindo). However, if the testimony is not just the results, but includes a "technical review" of the tests, that new expert opinion is not a violation (Mobley).

Here, the state's witness said they reviewed the notes, lab reports, quality control guidelines, etc. of the other analysts report and have reviewed it to "ensure it meets quality assurance guideline." This violated the confrontation clause, at it was not a "independent expert opinion." The court goes on to find this constitutional violation harmless error.

Second, no error in judge instructing that, for conviction of maintaining a dwelling, that the jury had to find that the defendant "maintained a dwelling house used for the purpose of unlawfully keeping or selling marijuana." (The crime requires maintaining for the purpose of keeping and selling). The court found this to be a mere extraneous matter and that the jury was unlikely to have convicted the defendant on theories (i.e. just keeping) not included on the indictment (i.e. selling).

Third, court did not err by refusing to find mitigating factors for sentencing, despite uncontroverted evidence. This is not a problem, since the defendant was sentenced in the presumptive range and the court only has to make finding about mitigating/aggravating factors if it departs from the presumptive range.

State v. Gomez. Durham County. Appeal of cocaine trafficking case.

During trial, the state entered recordings of phone calls between the defendant and others into evidence. The recordings were in Spanish and one of the jurors was fluent in Spanish. The defense objected, arguing that it put the jurors on uneven ground and was unduly prejudicial under Rule 403. Held: no prejudice.

State v. Moore. Buncombe County. Appeal of conviction for obtaining property by false pretense (OPFP).

The defendant was charged for purporting to rent a house to a tenant, when he did not actually own the property.

First, these facts were sufficient to fulfill the elements of OPFP: “(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.”

Second, defendant challenges restitution. (1) No requirement that the victim who receives restitution be listed as a "victim" on the indictment. (2) Here, the trial court erred in awarded restitution, in the absence of any evidence of damage amount. As a matter of law, the "restitution worksheet" alone is insufficient to support an award of restitution.

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