Wednesday, June 8, 2011

NC Court of Appeals Criminal Decisions, June 7, 2011

Reversals.

State v. Adams. Appeal of judgment by two co-defendant (Kenneth Adams and Michael Sowell) for two counts each of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), entered by Judge Carl Fox in Rowan County.

Two men were shot multiple times in a drug-related shooting. Defendant testified that one of the the two victims, Johnnie Thompson, fired a shotgun at them first and they only returned fire in self defense.

During the charge, the judge charged the jury on both defendants at the same time.

"The defendants have been charged with attempted first degree murder. For you to find the defendants guilty of this offense, the State must prove two things beyond a reasonable doubt: First, that each of the defendants intended to commit first degree murder. . . ."

Judge Fox similarly charged the jury on the issue of self-defense: "The defendants would not be guilty of attempted first degree murder on the grounds of self—defense if..."

The effect of this was for the jury to consider the defendants' guilt collectively, rather than individually. This prejudicially affected the outcome of the trial.

New trial.

State v. Hayden. Appeal of conviction for first degree murder, entered by Judge Kenneth Crow in Onslow County.

In 1972, the body of William Miller was found on the side of the road, with his car nearby, running. Miller had been shot in the head.

Held: insufficient evidence for a conviction of 1st degree murder. The state only presented circumstantial evidence of the defendant's identity as the perpetrator. Where the state's case only casts suspicion on the defendant, it must be dismissed.

The evidence presented here was:
  • Defendant had a motive to kill the victim, as the victim's wife had moved in with him.
  • Defendant had told people that, if the victim did anything to him, he'd "get him."
  • Defendant and the victim had a fight a few days before the incident, where the victim beat up the defendant and the defendant threatened to kill him.
  • Evidence related to defendant and victim's wife making arguably fraudulent charges with the victim's credit cards.
  • On the night of the incident, the victim's wife told Defendant she was thinking of leaving him for the victim and he "took a drive to cool off", around the time of the murder.
  • Statements that defendant made to others that he had stolen an M16 from base, which fires a round that is similar to the one that killed the victim.
While this is strong circumstantial evidence of intent or motive to kill and some evidence of means and opportunity, it is inadequate, as a matter of law, to identify the defendant as the perpetrator.

Reversed.

Other Cases.

State v. Merrell. Appeal of judgment of conviction in 1st degree rape and indecent liberties, entered by Judge Charles Henry in Carteret County.

First, court did not commit plain error in failing to instruct on voluntary intoxication. Defendant was a drunk and argued that he lacked the necessary intent due to the incident occurring during a black-out.

To prove 1st degree rape, the state must show specific intent to have intercourse. For indecent liberties, the state must show specific intent to commit offense for purpose of sexual arousal or gratification. As such, voluntary intoxication can provide a defense where the intoxication prevented a defendant from forming specific intent, due to diminished capacity.

Here, significant evidence showed that defendant made careful plans and used trickery to create circumstances where he was alone with the victim to commit these crimes, suggesting ability to plan and form intent. Further, black-outs and amnesia only demonstrate an inability to remember intent; they do not preclude the ability to form intent at the time of the incident. As such, the evidence of a blackout was not sufficient evidence presented to support plain error for the court's failure to instruct on voluntary intoxication.

Second, court erred in ordering defendant to submit to lifetime satellite-based monitoring (at the conclusion of his 220 month active sentence).

First, while rape is a sexually violent offense by definition, the court can only go on to order lifetime SBM if there is evidence that the offense is an aggravated offense, if the defendant is a "sexually violent predator" a recidivist (all defined in the statute), or if he is of needing of the highest level of supervision. The court made no such findings. Remanded for hearing on those issues.

State v. Petty. Appeal of order of Judge Yvonne Mims Evans in Mecklenburg.

Defendant was convicted of DWI in District Court. He then appealed for a de novo hearing to Superior Court. The Superior Court granted his motion to dismiss on the basis that the District Court was without jurisdiction to enter the underlying conviction (the District Court entered judgment more than 3 weeks after accepting plea, without issuing a PJC, and improperly exercised jurisdiction).

Held: The Superior Court lacked subject matter jurisdiction to hear the District Court issues as a court of appeal and should have simply proceeded de novo. Everything that happened in District Court is annulled upon appeal to Superior Court.

Remanded for hearing.

State v. Taylor. Appeal of conviction entered for obstruction of justice.

Defendant, Barry Taylor, was the #2 guy in the Sheriff's Office. During a traffic stop, some of his deputies arrested a guy, Dr. Senft, for DWI. The Doctor's wife, a friend of Taylors, jumped on the horn and asked her friend for help.

When the officers arrived at the station, Taylor took him into a private office and returned later saying that Dr. Senft scored a .07 on the Alco-Sensor and said he should be released. He never showed anyone the results of the Alco-Sensor and never took the Doctor before the magistrate. Further, he'd never been trained in administering Intoxilyzer and, basically, everyone thought he was full of shit and covering up for his friend.

A grand jury indicted him (by then he was the Sheriff) for felony obstruction of justice. Venue was changed from Lincoln to Cleveland County. The jury returned a verdict of guilty of misdemeanor obstruction of justice and Taylor was placed on probation. Taylor filed an MAR arguing that the indictment was fatally defective and that the statute of limitations had run, which was denied.

First, the indictment of obstruction of justice was valid. The common law offense requires proof that the defendant acted to obstruct public legal justice. Under 14-3(b), if done in secrecy, deceit or with intent to defraud, it is a felony. The fact there is another crime, 14-223 for RDO that might describe defendant's conduct, this did not nullify the common law offense in these situations.

Second, even though the statute of limitation would have run if only charged on the misdemeanor, when a jury finds it as a lesser-included of the underlying felony, it follows the statute of limitations for the felony (which had not expired). (Note: misdemeanors have a 2 years statute of limitations, where as no statute of limitations bars prosecution of felonies.)

Here's some old press on this case if you're interested.


State v. Williamson. Appeal of conviction for assault on female entered by Judge Alan Thornburg in Yancy County.

Defendant was indicted for assault inflicting serious bodily injury (AISBI) and misdemeanor assault on a female (AOF) in October 2007. Defendant filed two pro-se motions for a speedy trial: a letter in 4/2008 and a motion on 4/2009. At the CMS hearing on 5/2009, his trial was scheduled for 2/2010.

On 11/2009, defendant drafted a pro-se motion to dismiss for denial of his speedy trial rights, which was denied.

Two issues: (1) federal right to speedy trial was not raised; and (2) 15A-711 right to formally request that a prosecutor return a defendant to the custody of local law enforcement in the jurisdiction in which he has other pending charges was raised. If the prosecutor fails to make such a written request to the place the defendant is held within 6 months, the defendant is entitled to dismissal. 15A-711 does not include a right to have the trial conducted, only to have the prosecutor make a written request.

First, a defendant does not have a right to counsel and the right to push pro se motion. Here, however, the defense counsel adopted the pro se motions by arguing them at hearing.

Second, state may have failed to comply with 15A-711 by making a written request to DOC to have defendant brought to the county within 6 months of the written request. The record is devoid of any findings on that issue. Remanded for hearing on that issue.

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