Monday, May 23, 2011

NC Court of Appeals Criminal Decisions, May 17, 2011

State v. Burge.

Defendant's dogs were classified as "dangerous dogs" under N.C.G.S. 67-4.1. As such, he had to keep them confined indoors, in a securely locked pen, or in another structure designed to restrained dogs and he could not take them off his property unless they were leashed and muzzled.

One day, a man was walking down the street and was attacked by defendant's dogs.


Case made it's way to superior court and a jury found him guilty of "failing to confine a dangerous dog," under 67-4.2(a), a class three misdemeanor. Judge sentenced him for for "attack by a dangerous dog" under 67-4.3, a class one misdemeanor.

HELD: Judge erred in sentencing for attack, as the charge was for failing to confine--since the warrant did not have all the elements of attack in it. Remanded for re-sentencing.

State v. Hartley. Appeal of 1st degree murder, rape and sex offense convictions.

1st: No error in failing to suppress confession under Miranda. Defendant did not object to the admission of the confession at trial (even though there was an in limine motion on it). Under plain error analysis, no error. Issue is whether he was in custody. After the murders, defendant was located walking along the Highway. Police stopped and asked him if he was Kenneth Hartley and if he was OK. They told him three people had been injured in his home and asked if he knew anything about the situation, to which the defendant responded that he didn't. Officers conducted a Terry Frisk, located two bundles of money. They asked him to come to the command station (at a local fire department) for questioning. He agreed and rode, uncuffed, in the front seat of the police car. At the station, he was informed that he was not under arrest. At the end of the interview, the officer asked if there was anything else he'd like to say, and he said, "Yes, I did it" then went on to give a detailed confession. COA agrees that he was not in custody, under these facts.

2nd: No confrontation clause error where one pathologist reviewed the autopsy report of another and then testified, because the 2nd pathologist did their own technical review of the tests and formed her own opinion.

3rd: Swabs with defendant's DNA on them were properly authenticated. The swabs were with the non-testifying pathologist for 5 days before they were picked up by police. Because there was no reason to believe the item was in any way altered, the 5 days did not matter. Further, no confrontation problem where person who collected the evidence did not testify, because the officer's testimony of picking them up was good enough to authenticate and their significance was adequately explained by other testifying experts.

4th: No ex mero motu error in prosecutors closing argument. These were the statements:

  • "The defendant is trying to escape responsibility for the actions he did back on June 18, 2004. If that . . . isn't murder, I don't know what is"
  • "I know when to ask for the death penalty and when not to. This isn't the first case, it's the ten thousandth for me"
Defendant argues these were improper opinions of the prosecutor--statements of personal belief as to defendant's guilt. These did not go so far as to create plain error.

5th: No error in refusal of judge to give instruction a special instruction that, if he was found not guilty by reason of insanity, he would be committed. The court gave the pattern, rather than the defenses longer (but accurate) request.

State v. Jackson. Appeal of fleeing to elude arrest. A trooper engaged in a high speed chase with a motorcyclist, eventually finding him in a driveway-- a white male on a blue bike.

1) Sufficient evidence that motorcycle was driving recklessly, given excessive speeds and crossing of yellow lines to weave through traffic to escape.

2) No ineffective assistance for failing to object to evidence of the bike being entered (after a prior motion to suppress was denied--waiving appeal). First, the detective recognized the defendant's face from riding the bike, so their was significant evidence other than the blue bike of guilt. Second, defendant later confessed to being the driver.

State v. McCain. Appeal of possession with intent to manufacture cocaine and possession of oxycodone.

1st: Defendant was charged with trafficking cocaine (class G felony). Appeals arguing it was error to submit possession with intent to manufacture (class H felony) as a lesser included. Trafficking conviction holds if defendant possesses more than 28 g of cocaine. To prove possession with intent, the state must also show an intent to manufacture. As such, it is not a lesser included offense. Possession conviction vacated. However, simple possession of cocaine is a lesser included (which was also instructed upon). Remanded for re-sentencing on simple possession of cocaine (a class I felony).

2nd: Defendant challenged search warrant as not being supported by probable cause. Sufficient basis, where warrant based on (1) statements of reliable confidential informant of sales within 30 days of the affidavit from the residence, (2) anonymous tips, and (3) non-anonymous concerned citizen reports.

State v. Slaughter. Appeal of possession with intent to distribute marijuana and sentenced to supervised probation.

Police executed a warrant on a trailer with a full swat team, entering with a flash-bang. Inside, they found defendant, defendant's mother and three other men. The police found a big bag of little baggies of marijuana scattered around and stacks of $20 and $100 bills. They found scales, wrappers, and a total of $40,000.

1) Defendant challenges the proof of possession. To prove constructive possession, the state must show that the defendant has access to the drugs and that there are "sufficient incriminating circumstances" to prove he possessed it. Circumstances include: owning other items in the proximity, have exclusive access to where it was found, acting nervously in the presence of law enforcement, or residing in/regularly visiting where item was found, being found near contraband in plain view, or possessing a large amount of case. Later opinions focus on defendant's proximity and ability to control the place where the contraband is found.

Here, defendant clearly did not have exclusive control of the location. However, his close proximity to the contraband was adequate evidence. Defendant was found in a 150 sq. foot room surrounded by bags of marijuana and paraphernalia. This was adequate evidence. This is not a case in which any of the three individuals might have had control of a single baggie of marijuana. State presented sufficient evidence.

Judge Hunter dissents. "If the evidence is "sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed," even if "the suspicion aroused by the evidence is strong.""

"Here, the evidence presented at trial, even when considered in the light most favorable to the State, as is required in reviewing the denial of a motion to dismiss for insufficient evidence, tends to show only that defendant and two other individuals were detained by the tactical team and placed on the floor of a 10-by-15 foot bedroom in the back of the mobile home, which had a pervasive odor of marijuana."

State v. Twitty. Appeal of obtaining property by false pretense.

Defendant approached the congregation of the Mt. Olive Baptist Church with his alleged son and told this story: His wife died in a car accident and they were traveling to retrieve her possessions. They had no food and were almost out of case. Crying, he begged for money. The congregation obliged.

His story was not true.

The jury found him guilty of obtaining property by false pretense and Judge Gessner sentenced him to 151 to 191 months.

1st) No error to admit evidence under 404(b) of defendant telling this same story to other churches and receiving money. This was permissible as evidence of a common plan, as they acts were highly similar and occurred within a month of the charged conduct.

2nd) No plain error in DA calling defendant "a con man, a liar, and a parasite" in closing. All but "parasite" was accurate. The term parasite was unnecessary and unprofessional, but does not rise to the level of gross impropriety requiring ex mero motu intervention by the court.

3rd) Indictment wasn't fatally defective where it was alleged that he obtaining property by false pretenses from "The Congregation of Mt. Olive Baptist Church." Person in the statute includes a consortium or a corporation-- or a congregation.

4th) No speedy trial error as defendant's pro se motion was never adopted by counsel. A defendant cannot both represent themselves and have counsel. Unless counsel adopts the pro se motion, it is waived.

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