Tuesday, March 8, 2011

NC Court of Appeals Criminal Decisions (3/1/2011)

Nothing I got very excited about...

State v. Banks. Buncombe County. Appeal of first degree murder conviction.

An apparently high school aged kid killed his girlfriend's new boyfriend, but not before posting things on his Myspace page, like, "RIP Keith."

1) Sufficient evidence where defendant made prior threats, confessed to his girlfriend, and some shell casings were found in his car and home of the same caliber as used in the shooting.

2) At trial, defendant's girlfriend was called as a witness for the state and denied hearing the defendant confess to her. The state then impeached her (after she said she wasn't refreshed) with her prior statement to police that he had confessed. Defendant argues could not impeach its own witness by prior inconsistent statement. Under State v. Hunt, the state cannot use a "subterfuge" to put up a witness who says something else, solely to impeach them and get in the prior inconsistent statement.

Hunt
states that: "once a witness denies having made a prior statement, the State may not impeach that denial by introducing evidence of the prior statement." Here, the witness didn't deny making the statement. She said she did give a statement, but she couldn't remember what the statement was and didn't remember the defendant confessing to her. The COA said this is different than Hunt and thus admissible.

Further, the limiting instruction--that the prior statement only be considered for impeachment, not as substantive evidence-- protected from undue prejudice. Ha!

3) No error in allowing officers to then testify about the above statement (as substantive evidence). Here, these statements were admissible exceptions to hearsay as they were offered to explain the actions the officers later took. In other words, they weren't offered for truth, but rather to explain why the officers investigated the case in the way they did.

Because the defendant didn't make an objection under Crawford or the 6th Amendment, any confrontation issues were waived.

4) No prejudice from the district attorney crossing the defendant on his girlfriend's statements, as objections to those questions were sustained.

5) No error in denying motion to continue.

State v. Buddington. Rockingham County. Trial court dismissed a firearm by a felon indictment. Court of Appeals reverses.

Defendant challenged the firearm by a felon conviction under Britt v. State, in an unverified pleading, alleging that that the law was unconstitutional as applied to him. The judge granted the motion and dismissed.

Because no evidence was presented at the hearing, the court reverses, as the order did not rest on adequate factual basis.

State v. Carter. Randolph County. Appeal of conviction for indecent liberties. The defendant was acquitted on counts of 1st degree statutory rape and sex offense.

Evidence in the case primarily consisted of the testimony of a 6 year old (4 at the time of the offense), stating that the defendant "stuck his tail in my butt" and the like, and another young child, 4 years old who was 2 1/2 at the time of the incidents, who said something similar. Defendant's mother ran a day care and the allegations were that he was molesting the wards.

First: the 4 year old was competent to testify. There is no age of competency as a matter of law. A person is qualified unless they are incapable of communicating or do not understand the duty to tell the truth. On voir dire, the child made statements indicating she knew the difference between the truth and a lie and was generally responsive to questions.

Second: sufficient evidence of indecent liberties. Indecent liberties is proved where: (1) defendant 16 or more and 5 years older than child; (2) willfully takes or attempts to take (3) any immoral, improper, or indecent liberties, (4) with any child under 16 (5) for the purposes of arousing or gratifying sexual desire. Defendant only challenges the intent requirement. While there is no direct evidence, the sexual nature of the contact (and evidence that he was watching pornography during the assaults) gives rise to a reasonable inference of sexual intent. Thus, sufficient evidence was presented for jury determination.

Third: state's expert (a doctor who found some physical evidence consistent with abuse) blurted on cross that "a child her age with that much sexual knowledge indicates that something happened." This was admitted without objection (i.e. non-responsive). First, as a matter of law, statements elicited by a defendant on cross cannot be prejudicial as a matter of law. Second, counsel's performance was not so deficient that it undermines confidence in the outcome. Therefore, no ineffective assistance claim may lie.

State v. Eaton. Rowan County. Appeal of conviction for trafficking in hydrocodone (i.e. vicodin).

Defendant indicted for trafficking 4 grams or more, but less than 14 grams of opiate (vicodin). Defendant was caught selling 20 pills of hydrocodone. At trial, his motion to suppress was denied and he was found guilty and sentenced to 133 to 169M. (That's a year for every 2 pills!)

The Search. An officer was in a high crime area and saw 5 people standing in the middle of an intersection. He turned on his blue lights and all five people disbursed in different directions. He "asked" them to come back and all did but the defendant. He kept calling and, when the defendant turned around to come back, he saw the defendant throw a bag of drugs on the ground. Defendant was then arrested. There was no seizure here, so the it doesn't matter whether the stop was legal or not. A seizure doesn't occur until the defendant complies with a show of force. Here, he walked away and threw the drugs. This means no stop and abandonment of the drugs, which the police were free to collect (similar to USSC California v. Hodari D (1991)).

Habitual Felon. Defendant next challenges conviction for habitual felon, on grounds that that the trafficking statute includes within it specific sentencing rules and thus the structured sentencing act does not apply to it.

The trafficking statute 90-95(h)(4)(a) prescribes that any person convicted (of what defendant was convicted of) shall be "punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 84 months..." and pay a $50,000 fine. (Normally, class F felonies are punishable by 10-41M in prison and, in some cases, are eligible for probation).

The habitual felon statute indicates that anyone convicted of "a felony" (who has 3 prior felony convictions) shall be sentenced as a class C felon (class C punishable by44 to 393M in prison, depending on prior record).

Allowing otherwise would lead to the absurd result that someone convicted of a simple felony possession could be sentenced as habitual (and more harshly) than someone convicted of trafficking.

Statements. Last, no objection to statements of police that defendant referred to them in racial slurs. Even if this testimony was not appropriate (and should have been excluded under 403), it was not plain error.

State v. Elkins. Buncombe County. Appeal of common law robbery conviction.

1) For common law robbery, adequate evidence of theft by force or fear where defendant asked for money with his hand in his pocket and cashier gave the money, believing he had a weapon (he did not).

2) Statements of the victim that "I thought he had a gun" was not improperly speculative. Rather, it was an opinion based on firsthand observation.

3) No plain error from prosecutors use of leading questions on direct (i.e. "based on your fear that he may have a gun, is that when you gave him the money?"), opinion evidence of officer ("I felt like I was building a solid case" and some hearsay from officer about friends telling him that defendant was wearing a different jacket than usual.

Reversed the restitution award, as it was unsupported by evidence.

State v. Gillespie. Rowan County. In second degree murder sentencing, judge found one aggravating factor and multiple mitigating factors. Was within judges discretion to find that the aggravator outweighed the mitigator and sentence the defendant in the aggravated range.

Defendant complained that the judge discounted one of his mitigators (that he was suffering from a mental condition) as he had already received benefit in the form of a 2d plea due to this.

JUDGE SPAINHOUR (left): "I find the following mitigating factors: No. 3A, the defendant was suffering from a mental condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the offense. Therefore, I think that's why it's not murder in the first degree. It's murder in the second agree [sic], classically, I think."

The COA said the defendant read too much into this comment and it doesn't show that the judge improperly refused to consider the statutory mitigator.

State v. Green. Wake County. Appeal of DWI.

Officer testified at trial that, based on his observations of the defendant, he had the opinion the defendant was drunk. A BAC was taken later at the stationhouse of .19. The state offered Paul Glover as an expert to testify using "retrograde analysis" as to the BAC at the time of incident (3 1/2 hours prior), extrapolating from the later BAC analysis taken at the station, which he alleged was .24.

1) No abuse of discretion to allow expert to testify on retrograde analysis, under rules 702-3. Under Howerton, expert testimony is admissible if "(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony?(2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?" Here,d defendant only challenges the 2nd prong. The court found that the expert had extensive credentials and was qualified to testify.

2) No error in allowing expert to testify that, based on his analysis, the defendant drank 88 ounces of wine. This was not an improper expert opinion on credibility (defendant claimed he only drank 5 glasses of wine or 25 ounces). Rather, it was an opinion about the likely consumption based on the BAC.

3) No error in expert saying that 5 glasses of wine was 25 ounces, based on experts knowledge of alcohol consumption.

4) No Blakely error in court finding the aggravating factor (rather the jury) of BAC greater than .16, because the court punished in the presumptive range and, as such, didn't need to find aggravating or mitigating factor at all.

State v. Hill. Buncombe County. Appeal of Robbery with Dangerous Weapon (RWDW).

At an ATM, an assailant approached the victim and asked for his money and "pointed his hand with an object in it." The victim grabbed the assailant's hand, at which point the assailant grabbed the money and ran. Afterwards, the victim had a laceration on his wrist. Assailant ran and got in a pickup truck on the passenger side. Defendant was later (shortly later) arrested with the assailant in the pickup truck.

To prove "dangerous weapon," state also put in 404(b) evidence of another robbery earlier in the day at another ATM where the assailant had a knife. Defendant's objections to this testimony were overruled, despite defendant having previously had charges in that robbery dismissed.

First, sufficient evidence to prove robbery. Defendant was present at the crime and there was sufficient evidence for a jury to find that he was a participant as the getaway driver.

Second, evidence of the other robbery was permissible under 404(b). The crimes were substantially similar--involving the same truck, with 2 people in it, using a deadly weapon, at an ATM, the same night.

Judge Hunter dissented, on ground that state failed to prove there was a dangerous weapon used. He would remand for a new trial on common law robbery (which the trial court did not instruct on as a lesser).

State v. Johnson. Durham County. Appeal of conviction for murder and discharging a firearm into an occupied vehicle.

1) No error in judge's limiting of voir dire. To win a voir dire claim, you must show prejudice and that the court's actions were "manifestly unsupported by reason and so arbitrary they could not have been the result of a reasoned decision." Court sustained objection to these 4 questions on witness credibility.

"Now, what type of facts would you look at, Mr. Colopy, to make the determination if someone’s telling you the truth". Ruled improper stakeout question on witness credibility before he had been instructed on how to assess credibility.

(After Judge gave instruction in light of prior objection). Ms. Falcon, would it be important to you that a person could actually observe or hear what they said they have from the witness stand? Properly sustained, because defense was seeking to "indoctrinate jurors" regarding a potential issue.

Ms. George, would you also – one of the things the judge talked about also is if someone’s getting a benefit from testimony. Would you look at that and make a determination of whether you believe their testimony or not?" While questioning on interested witnesses is usually permissible, here, the state hadn't opened the door by mentioning this and the questions here were about "benefit" rather than the mere existence of a plea (pretty thin!

"Mr. Trullinger, if you hear the evidence, [sic] the see the evidence that comes in, and you find evidence on three factors – or three elements beyond a reasonable doubt, but you don’t find on the fourth element, what would your verdict be?" Court found this an improper question as it gets the juror to "pledge himself to a future course of action."

Short lesson--it's nearly impossible to win voir dire claims on appeal....

2) Not plain error to admit handwritten statement of one of the witnesses, as minor additions and variations in the statement were not problematic and it was largely corroborative of his in-court testimony.

State v. Lawrence. Hoke County. Appeal of two counts attempted robbery, kidnapping, breaking and entering and conspiracy.

A group of people planned a drug-house robbery and recruited defendant. Their plan was to catch the victim walking out of the house and force them back into the house and threaten her for money. Police arrive to check out their looking suspicious, still in their car, in front of the house. They fled.

The group re-grouped and tried again, this time a neighbor saw them. The neighbor grabbed his pistol and made a citizen's arrest, catching some of defendant's co-conspirators in the woods behind the victim's house. Defendant was later found in Mississippi, after his one of his co-defendants confessed.

1) Sufficient evidence of attempted kidnapping, even though the defendant was never in the presence of the intended victim. The group bought zip-ties and planned to tie up the victim and rob her. This is the necessary intent for kidnapping. There was a sufficient overt act for the kidnapping, including stealing cars, buying equipment, then going and waiting at the victim's house. Lying in wait is an act beyond mere preparation, and constitutes an overt act sufficient for attempt. The court makes the same holding on defendant's challenge to attempted robbery and attempted b&e.

2) Defendant challenges the two conspiracy convictions, on the argument that it was just one conspiracy and the group made two attempts to complete it, rather than it being two separate conspiracies. "Multiple agreements or overt acts which arise from a single agreement do not permit prosecution for multiple conspiracies." Court found this is only one conspiracy and reverses conviction on the 2nd conspiracy.

3) Court properly gave flight instruction, where defendant fled to Mississippi after the incident.

4) Trial court improperly instruction jury on conspiracy to commit robbery with a dangerous weapon. The court did not list all 4 elements for robbery with a dangerous weapon, but rather just said it is a robbery while using a firearm. New trial on that issue.

State v. McNeil. Sampson County. Appeal of felony breaking and entering, larceny, and possession of a firearm by a felon.

First, indictment for felonious larceny was defective, as it failed to allege ownership of the item stolen. For larceny, the state must specifically aver in the indictment what was stolen, who owned it, and that the owner was a person or legal entity capable of owning property. Arrests judgment.

Second, sufficient evidence of the b&e and possessing the firearm that was stolen where victim identified defendant and law enforcement identified defendant's automobile in the area. Further, where proof was had that a gun was stolen and defendant stole it, this was sufficient circumstantial evidence to prove possession of firearm by felon (even though no one ever specifically saw him with the gun). Further, there was evidence of constructive possession, as the gun was later found in a house he had access to, he knew it was there, and he behaved suspiciously in connection to it.

Third, trial court comments that "The defendant, for whatever reason and only known to him, has refused to return after the lunch recess" did not deprive defendant of a fair trial. Judges cannot comment on the evidence. This statement was not an opinion on anything to be decided by the jury and thus not objectionable.

Fourth, court erred in awarding restitution, in the absence of evidence of value.

State v. Scruggs. Guilford County. Appeal of denial of motion to suppress.

Defendant challenges his auto stop on the basis that the UNC-G Police Officer did not have jurisdiction to stop him on UNC-G Campus property. There existed at the time a "Mutual Aid Agreement" between UNC-G police department and Greensboro, extending jurisdiction off of campus in certain situations, including "have probable cause to believe that a misdemeanor has been committed and the person to be arrested might otherwise evade apprehension or cause harm to himself, other people or property unless immediately arrested."

The court did not resolve whether this situation would qualify, but rather concluded that, even if it didn't, it was not a "substantial violation" of 15A, which is necessary to have a remedy of suppression.

State v. Wiggins
. Lenoir County. Appeal of 1st degree murder conviction, assault with a deadly weapon inflicting serious injury, and 3 counts of possession of firearm by a felon. and sentence of life without the possibility of parole.

Defendant shot three people for no apparent reason in separate incidents (about 3 hours apart). Two lived, one died.

First, defendant was wrongfully convicted of 3 counts of possession of a firearm by a felon. These acts constituted one act of possession. Reverses judgment on 2 counts.

Second, no plain error in courts failure to instruct on second degree murder.

State v. Wright. Bladen County. Appeal of 6 convictions related to an assault.

Someone, presumably the defendant, broke into the victim's trailer and beat her with a pipe, crushing her skull. He was convicted of attempted murder, secret assault, and assault with a deadly weapon with intent to kill inflicting serious injury.

1) Secret Assault: Vacated due to insufficient evidence. To prove a secret assault, you must show: (1) assault, (2) with malice (3) with a deadly weapon (4) with intent to kill and (5) in a secret manner. To prove "secret" it must be an assault from an ambush or by lying in wait. Here, the attacker broke into their house, screamed, and assaulted them. While this is awful, it's not lying in wait.

2) Classification of Out of State Convictions:

3) SBI Blood Testimony: SBI serologist Jodie West tested defendant's clothes with phenolpthalein and stated that it gave "an indication that blood would be present." He also testifed that certain plant materials, other than blood, could give a false positive, but "But in my training and experience I have never found these plant materials to give a positive reaction." Then Agent Hinton testified that she found DNA mostly of Locklear (victim) and some of the defendant.

Admission of West's statements was not plain error. The agent did not misrepresent, since he said it "gave an indication that blood could be present" (rather than overstating and saying "it's blood").

5) Motion to Continue: Defendant's motion to continue to test the DNA and blood (and some hairs that the state didn't test) with his own expert was denied. He challenges this under the 6th and 14th amendment. The court found determinative that the motion came on the eve of trial and no request for an expert was made during the 6 months the defense attorney had to prepare for trial.

5) 404(b): State entered evidence of a prior breaking and entering by the defendant and statements defendant supposedly made to others that he had killed people before. These are not plain error.

6) Evidence: Not plain error where hearsay admitted without objection.

No comments: