Tuesday, May 17, 2011

Court of Appeals Criminal Decisions, May 3, 2011

Reversals:

State v. Cobos. Appeal of convictions of conspiracy to traffic cocaine and PWISD cocaine. Defendant arrested with 83 grams of cocaine during a controlled buy.

First, The indictment for conspiracy was fatally defective, therefore the court lacked jurisdiction to try the defendant on that charge. The indictment read:

"The jurors for the State upon their oath present that on or about March 12, 2009, in Wake County, the defendant named above unlawfully, willfully and feloniously did conspire with Facundo Ausencio Marquez and Enoe Jaramillo Martinez to commit the felony of trafficking to deliver Cocaine, which is included in Schedule II of the North Carolina Controlled Substances Act. This act was done in violation of NCGS 90-95(h) of the North Carolina Controlled Substances Act."

An indictment must allege all the essential elements of the offense. An essential element of trafficking is 28 grams or more of cocaine. The failure of the indictment to include the element of 28 grams or more made it fatally defective, depriving the court of jurisdiction to hear that count. Conspiracy arrested. (The fact that it was later amended by consent does not save the indictment. You cannot amend, even by consent, a fatally defective charging document.)

Second, on possession count, no error in admitting an untested white powder that was found on the defendant's person, where detective testified that, based on his experience, he believed it was cocaine. Court declines to address arguments as there is no prejudice (because a huge bag was found in his car and was tested).

Third, hearsay claim not preserved as no motion to strike was made and not plain error.

Judge Steelman dissents on ground that it was error to allow lay witness to testify that the bag contained cocaine.

State v. Dibiase. Appeal of second degree murder conviction and sentence to 170 months.

New trial ordered due to courts failure to instruct on the lesser included offense of involuntary manslaughter. Defendant and the victim got in a fight at a party over Defendant's suggestion to the victim's girlfriend that they do some oxycontin together. During the fight, the victim sustained a two inch deep, 11 inch long laceration wound to his neck and died, that was likely caused by a broken beer bottle. Witnesses testified the event lasted only 10 seconds and there was only one blow--essentially that the defendant hit the victim with a beer bottle.

Defendant requested instruction on the lesser-included offense of involuntary manslaughter. A court must give such instruction if, considering the evidence in the light most favorable to the defendant, there is evidence sufficient to support the instruction. There was evidence that defendant hit the victim with a beer bottle (that broke and resulted in the laceration) without intent to kill, after being shoved or punched by the victim. This evidence would have permitted a jury to find the defendant guilty of involuntary manslaughter, which is the "unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury."

New trial.

State v. Hunt. Appeal of conviction for 2nd degree sex offense and crime against nature. Reversed and vacated.

Defendant, an adult, had oral sex with his daughter's 17 year old friend. The major issue in the case was whether or not the 17 year old was sufficiently mentally disabled to make this a sex offense.

The girl had a 61 IQ, but was completing high school and evidence was presented that it would be difficult but not impossible for her to get an associates degree from the community college. She was a 12th grader who made As and Bs, regularly baby-sat for others, paid her own bills, and was planning to get her license.

2nd degree sex offense rape occurs where the victim's consent is overborne by force or if the victim lacks actual ability to consent due to mental disability, mental incapacitation, or physically helplessness. Here, there was no evidence of force. The only issue was whether the victim lacked the ability to consent due to mental disability.

In this context, mental disability must be so severe that it "renders her substantially incapable of appraising the nature of her conduct, or resisting a sexual act or communicating unwillingness to submit to a sexual act." These are people that are so handicapped that they cannot, under any circumstance, consent to sex (like children). Mental retardation, alone, is not per se a mental disability that prevents consent to sex. Here, where evidence showed she baby-sat, made As, and was planning to attend community college, the state failed to meet its burden.

3rd, the crime against nature charge also must be dismissed. In the absence of proof of non-consent, there can be no crime against nature. The statute, which on it's face prohibits most sex acts other than vaginal intercourse, would be unconstitutional if applied to consensual acts.

Vacated.

Other Cases:

State v. Brown. Appeal of indecent liberties and first degree statutory rape. Sentenced for 20 years.

First, a book called "Family Letters" an erotic incest tract, was introduced to show defendant's motive/etc. under rule 404(b). Defendant argues that his possession of pornographic material is inadmissible under 404(b) as irrelevant and unduly prejudicial.

While general possession of pornography is not normally admissible under 404(b), this type was because it described incest and was relevant to motive (rape of defendant's daughter).

Second, no error in ordering lifetime enrollment in satellite-based monitoring (SBM). SBM is automatic for aggravated offenses--offenses that by their element either (1) involve rape by force or (2) involve penetration with a victim less than 12.

Here, statutory rape of a child under 13 necessarily involves force. See State v. Clark.

State v. Goode. George Goode was sentenced to death in 1993 for two murders and then sentenced to an additional 40 years for robbery.

On October 21, 2009, the federal court issued a writ of habeas corpus vacating the death sentences and ordering that NC sentence him to life, unless a sentencing hearing is held within 180 days.

The state decided not to proceed capitally again and a sentencing judge resentenced him to life. Defendant appeals, arguing the trial court erred in imposing consecutive, rather than concurrent sentences.

Statutorily, after successful appeal, the superior court cannot impose a new sentence "which is more severe" than the prior sentence. Defendant argues that, because the death sentences were not set to run consecutively, the court could not impose consecutive life sentences.

Held: two concurrent death sentences are more severe than two consecutive life sentences. Court was allowed, in its discretion, to boxcar these life sentences. (Note: This only matters because in 1993, life meant eligible for parole in 25 years. Now, 1st degree murder is punishable only by death or life without possibility of parole).

State v. Green. Appeal of indecent liberties conviction. Defendant pleaded guilty and was sentenced to 25-30 months. At the conclusion of sentencing, the court found he required the "highest possible level of supervision and monitoring" and he was ordered to enroll in SBM for 5 years.

Defendant challenges court finding of fact that he required the "highest possible level of supervision and monitoring" (a required finding for non-aggravated offenses), base on DOC risk assessment that he was a "moderate-low risk." Here, there were additional facts-- the victim was too young to speak, prior acts of domestic violence, and defendant's failure to complete sex offender treatment. Given these additional finding, court did not abuse its discretion.

State v. Howell. Appeal by state of dismissal due to speedy trial.

Defendant moved, from prison, pro se (although he was represented by counsel), for a speedy trial. He was indicted on April 13, 2009. On May 6, 2009, he requested a speedy trial. On November 9, 2009, the trial judge granted his pro se motion and dismissed the charges.

First, state argues the court should not have considered the pro se motion, since the defendant was represented by counsel. This was not error because defendant's counsel essentially adopted the motion as his own by arguing it. Further, while case law says it is not error to ignore pro se motions made by the represented, it is not error to rule on them.

Second, remanded for additional findings to determine the grounds for ruling dismissing the charges.

State v. Leyshon. Pro se appeal of conviction for driving while license revoked (DWLR).

First: On July 14, 2008, Defendant refused counsel, then the judge ordered counsel appointed. Defendant argues this violated his right to proceed without counsel. While the defendant did say (about counsel) "I refuse it publicly on the record." He previously gave some vague answers and refused to answer some questions and refused to sign the waiver of counsel. As such, there was not an unequivocal assertion of the right to proceed pro se. No error in appointing counsel.

Later, the trial judge allowed his case to proceed without appointed counsel. Although there was no unequivocal waiver, defendant forfeited his right to counsel by his behavior. “Any willful actions on the part of the defendant that result in the absence of defense counsel constitutes a forfeiture of the right to counsel.” Defendant refused to sign a waiver form, refused to answer questions about whether he wanted an attorney, etc. These actions obstructed and delayed the process, causing a forfeiture of the right to counsel. No error in proceeding without counsel.

State v. Stevenson. Appeal of first degree murder conviction (and kidnapping, robbery and conspiracy).

Defendant and a friend robbed a drug dealer. The friend shot and killed the dealer.

First, no error in admitting evidence of guns found in Defendant's home during search warrant. The guns were not used in the robbery. Defendant argues they were unduly prejudicial under Rule 403. No objection at trial. Ruled not plain error--no different outcome would have resulted without this evidence, given his written confession.

Second, no error in admitting picture of Defendant with a firearm, taken at a different time than the robbery, as it was relevant to means. The fact he was making a gang sign did not make it unduly prejudicial, given the evidentiary value of the picture showing access to a silver gun.

Third, during deliberations, the jury asked for a transcript of a witnesses testimony. Under 15A-1233, a Judge has the discretion to read back the testimony of witnesses or allow examination of evidence. No abuse of discretion in giving jury the defendant's statement and photographs, but denying the transcript of a (defense friendly) witness's testimony. No explanation is necessary and a statement that, in his discretion, the judge was denying the request, was enough.

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