Thursday, March 24, 2011

NC Court of Appeals Criminal Decisions, March 15, 2011

New Trial

State v. Towe. Appeal of three counts 1st degree sex offense and 2 counts statutory rape (and 50 year sentence).

The State's expert improperly testified that child had been the victim of sexual abuse. Under NC law, an expert may not testify that sex abuse has occurred unless there is physical evidence supporting the opinion. Here, the expert testified that:

"Q: And do you have an opinion, ma’am, based upon your knowledge, experience and training, and the articles that you have read in your professional capacity as to the percentage of children who report sexual abuse who exhibit no physical findings of abuse?

A: I would say approximately 70 to 75 percent of the children who have been sexually abused have no abnormal findings, meaning that the exams are either completely normal or very non-specific findings, such as redness.

Q: And that’s the category that you would place [Shirley] in; is that correct?

A: Yes, correct."

This was imperissible and constituted plain error.

Other Cases.

State v. Boozer and Covington. Appeal of conviction for assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), robbery with a dangerous weapon (RWDW) and 1st degree kidnapping. Sentenced to 93-121 M.

The facts of the case are essentially this: defendants severely beat victim (broken collarbone and nose, concussion, and jaw wired shut) with objects, including his own bicycle, and then stole his wallet. Afterwards, they tried to stuff him into a garbage can, failed, so dragged him to a nearby ditch and threw him in. When police arrived, they found the victim lying in the 10-12 ft deep ditch in several inches of water.

A witness saw the incident and identified one of the defendants (Covington) by looking through the magazine, the "Slammer" with a police officer. Later, on his own, the witness found the other defendant, Boozer, in the slammer and notified the police. Another man (who I assume took a plea) was identified by the Witness in a photo line-up. That person also left fingerprints on the bicycle. No physical evidence linked these defendants to the crime. Boozer gave a statement to police that, "I only hit the man twice."

1) Sufficient evidence of 1st degree kidnapping. Kidnapping is defined as the unlawful confinement, restraint, or removal of a person from one place to another, without consent where the purpose of the confinement, restraint or removal is (among other things) to do serious bodily harm or to terrorize the person.

Here, the "removal" was throwing the victim in the ditch. The essential issue is whether that removal was "for the purpose of doing serious bodily harm or terrorizing the victim." Here, there was sufficient evidence of intent to terrorize/do bodily harm because it was dark and defendants could not have known the depth of the ditch or if there were rocks at the bottom. Throwing him in under these conditions show an intent to terrorize/do bodily harm.

2) No plain error in failing to instruct on the lesser included crime of false imprisonment (which doesn't include the intent requirements noted above). The trial court does not have to instruct on false imprisonment if there is sufficient evidence that the defendant acted with the purpose required for kidnapping.

3) No error in procedure used to identify Defendant from the "Slammer." Pre-trial identification must be suppressed if the procedures used were "so suggestive as to create a substanial likelihood of irreprable misidentification." The likelihood of "irreprable misidentification" depends on the totality of the circumstances, including: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

Here, there was no likelihood of irreprable misidentification, as the witness had opportunity to view the defendant and was familiar with him from multiple poker games at his house, lasting 2-3 hours each. Further, he identified the photograph and his prior description of him was accurate.

No error.

State v. Hughes. Appeal of sentence for felony breaking and entering, larceny, and possession of stolen goods, sentenced to 96-125M as habitual felon.

Found lack of jurisdiction to hear appeal, as the defendant failed to note appeal in compliance with Rule 4. To appeal, a defendant must give oral notice of appeal at trial or file notice of appeal with the clerk of superior court, serving copies on all adverse parties, within 14 days of judgment.

No oral notice here and no written notice was ever filed. There was a box checked by a judge on form CR-350 indicated Notice of Appeal. However, this "boilerplate" form does not preserve appeal, in the absence of a statement in the trial transcript or a written notice of appeal.

State v. Santos. Court erred in determining defendant was eligible for lifeltime satellite-based monitoring (SBM).

1st) Found that defendant's guilty plea was knowing and voluntary. Held that defendant's plea was not involuntary, even though court only gave him 15 minutes to make a decision on whether to accept the plea and would given him more time to "reflect on this important decision."

2nd) Trial court erred in finding that 1st degree sexual offense was an aggravated offense for SBM purposes. To determine if a count is "aggravated," the court must look only to the elements of the offense, not the underlying facts. An "aggravated" offense is one involving penetration by force or with a minor under 12. The elements of sex offense require that the minor be under 13, not under 12. As such, by definition, it is not an aggravated offense (even if the child in the case was under 12).

State v. Shropshire. Defendant pleaded guilty to attempted rape and attempted statutory rape in exchange for a mitigated sentence. The court sentenced him in the mitigated range, but ran the 2 charges consecutively, for a sentence of 151M + 151M. Shropshire apparently didn't think he could be sentenced consecutively.

Afterwards, this exchange occurred:

  • SHROPSHIRE: I didn’t understand, your Honor.
  • THE COURT: 151 minimum to 191 minimum [sic] plus the same thing.
  • SHROPSHIRE: Your Honor --
  • THE COURT: Take him out.
  • SHROPSHIRE: I appeal this on the grounds my constitutional rights were violated. I appeal.
  • THE COURT: [Defense counsel], if you’ll take a couple minutes to explain with [Shropshire] the limited grounds for appeal. If he alleges grounds that are allowed to be appealed to the guilty plea I will allow him to plea [sic].
  • SHOPRSHIRE: I would also like to reject my plea.
  • THE COURT: That’s a motion to withdraw your plea, is that what that is?
  • SHROPSHIRE: Yes, sir.
  • THE COURT: Motion denied. Take him out.
Defendant argues on appeal that trial court erred in summarily denying his motion to withdraw his plea. A motion to withdraw a plea is a motion for appropriate relief (MAR). A party is entitled to a hearing on any MAR, unless the court determines the motion is without merit. There was no evidence here that the plea was not the product of free and intelligent choice. The only reason for moving to withdraw was dissatisfaction with the sentence. As such, the court was free to summarily deny the motion.

State v. Smith. Appeal of AWDWISI.

First, court erred in ordering restitution, as the State failed to present evidence to support the amount of restitution ordered.

Second, court did not err in instructing the jury that, as a matter of law, multiple gunshot wounds to the upper body constituted "serious injury".

Third, no error in refusing to instruct on the lesser included AWDW, as no evidence to support AWDW not inflicting serious injury.

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