Thursday, June 30, 2011

NC Court of Appeals, Criminal Decisions (6/21/2011)


State v. Burke.
Appeal of drug possession and concealed weapon conviction.

Defendant stopped when officer notes that his 30-day tag appears to be different (different numbers) than other 30-day tags he's seen and the officer believes it is fictitious. When the defendant went into his glove box to get his registration, the officer saw a handgun. Defendant was arrested for carrying a concealed weapon. Then the defendant confessed to having ecstasy and cocaine.

1) Held stop was not valid. The officer lacked reasonable articulable suspicion for the stop. Here, there was no evidence that the 30-day tag was old, worn or concealed. The officer simply believed the numbers were "too low." This was inadequate reasonable suspicion for the stop. (Note: The tag was valid.)

Evidence should have been suppressed. Reversed and vacated.

Martin dissents.

State v. Martinez. Appeal of indecent liberties and statutory rape convictions.

At trial a social worker testified that she had investigated the allegation and "substantiated it", through the child welfare process. This is an inappropriate comment on witness credibility--that an expert reviewed the situation and decided the victim was being "truthful." Cases where an expert testifies about physical evidence consistent with the victim's story are OK, but finding that, based on an investigation, that the incident occurred according to the victim's version is not (here there was no physical evidence consistent with sex abuse). Court found that this was prejudicial
plain error (granting relief even though there was no objection at trial).

New Trial.

Second, trial court erred in failing to disclose material exculpatory evidence contained in documents that were reviewed in camera. Ordered the trial judge to review the material de novo and provide to the defendant.

State v. Whetstone. Appeal of convictions for assault with a deadly weapon inflicting serious injury (AWDWISI).

Facts of the case were that defendant and the victim, a Marine trained in hand-to-hand combat, got into a fight after a night of drinking and defendant stabbed the Marine. D

Judge gave a self-defense instruction, but not the deadly force self-defense instruction (i.e. that the defendant could use deadly force if he reasonably believed deadly force was or was about to be used upon him) (Pattern instruction 308.40 versus 308.45).

One is entitled to the deadly force instruction if there is any evidence, in light most favorable to the defendant, that deadly force was being used on defendant. Given the victim's Marine Corp training, general status as a bad ass, and testimony of the defendant that he was beating the crap out of the defendant, there was such evidence and the court erred in failing to instruct on deadly force.

New trial.

Other Cases.

State v. Carter.
Appeal of second degree murder conviction.

A fight broke out at the Red Rooster Nightclub in Winston-Salem around 2:00pm. Someone threw a chair. The crowd numbered 400-500 people. At least 30 separate fights broke out in the parking lot. Defendant got hit in the face and was bleeding. Deputies, who were working off-duty security, started spraying pepper spray. The defendant went to his car and got a 9mm handgun. Yelled "fuck it" and fired several shots "toward the crowd" (in the air). One of the deputies was hit and killed. Defendant was tried for 1st degree murder, and the jury returned 2nd.

1st: No error in denying motion to suppress confession. Defendant was asked to come to the police station and he agreed. He road with police, after informing them he had trouble with his car. During the interview at the police station--where defendant was not given any Miranda warnings, he confessed to firing his gun straight up in the air. No Miranda problem as defendant was not in custody at the time of the confession. He voluntarily went to the station and was free to leave.

2nd: No Batson error. During jury selection, state accepted 11 white jurors, while striking 2 blacks. The trial court made the DA explain his decision, and he responded that one juror had a sister in jail who felt she was mistreated, had poor eye contact and a low voice and another because her son had been sentenced to 35 years for attempted murder. Another white juror was accepted whose father was in prison, two were accepted that had criminal records, and several accepted that had "run-ins" with the police.

Here, the state rebutted the prima facie showing by articulating legitimate race neutral reasons and the whites were distinguishable from the blacks.

3rd: Even though defendant had no intent to kill, firing in the direction of the crowd was sufficient malice for 2nd degree murder.

4th: No error in submitting aggravating factor that a deputy was the victim. No requirement to show that defendant knew the victim was an officer, as long as the officer was engaged in police duties.

State v. Edmonds.
Appeal of statutory rape and indecent liberties conviction.

Defendant convicted of rape/indecent liberties with a 15 year old. State's case relied almost exclusively on the victim's testimony and some torn clothing (DNA evidence was inconcl
usive: defendant "could not be excluded...")

First, defendant argues he was unconstitutionally limited in his cross of the victim. No constitutional arguments were made at trial, thus they are waived. No error under 412--the Rape Shield Law. Prior sexual behavior of a victim in a rape case cannot come in unless prior acts are between the defendant and the victim, if admitted to show the acts were not committed by the defendant, or the prior acts are so distinctive and resembling the defendant's version that they prove consent, or offered to show (with psychiatrist testimony) that it was invented. The victim's prior promiscuity was not relevant to any of these and not otherwise admissible. No error in excluding this.

Second, no error in limiting defendant's closing and not letting him argue that someone else, possibly his nephew, committed the acts. The judge said he could say it "wasn't him" but not it was someone else. Because the record doesn't clearly show any particular argument he was limited in, the argument is dismissed.

State v. Herrin.
Appeal of conviction for "felonious malicious use of an explosive or incendiary device."

This crime is a new one on me. Only in Gaston County.

Facts in this one are worth a read. Basically, defendant
(right) was raising hell in a trailer park (physically taking bikes from people, choking people, hitting people's dogs with a shovel.) Eventually, he says, "i'm gonna burn ya'll up" Cuts a bud lite can in half, puts gas in it, and douses one of the neighbors, then lights him on fire.

Defendant was indicted for maliciously injuring this neighbor with an incendiary device, NCGS 14-49(a)--a Class D Felony.

First, the court instructed that gasoline was an "incendiary material." Defendant argues that this was an issue for the jury and the judge erred in instructing so. Overruled, since there was no plain error raised on appeal and no objection at trial.

Second, no error by having the judge improperly comment on the evidence. Judge laughed, in open court, when a witness testified that the defendant "ran like a bitch all the way, way down past his house." Ruled no prejudice. While a judge cannot express an opinion on evidence in front of the jury, not every "indiscreet and improper remark by a trial judge" is so harmful as to require a new trial. Only if the jury may reasonably infer that the judge intimated an opinion on a factual issue or credibility is there prejudice. This was simply a laugh a funny comment--and the judge explained that he was just laughing "at the terminology...I haven't heard that term utilized."

State v. Jones.
Appeal of convictions of 2 co-defendants (Tina and Jerry Jones) for "causing their daughter to fail to attend school."

Sufficient evidence. Elements: (1) Defendant is a parent or guardian; (2) of a school aged child enrolled in public school; (3) that the principal notified the parents of at least 3 unexcused absences, (4) after not more than 6 unexcused absence, notified that may be in violation; (5) that after notification the school counselor worked with the parents to analyze and fix the problem; and (6) the child nonetheless got more than 10 unexcused absences.

Defendant argues that (4) was not met, because the child already had 8 absences when they sent the letter. Held that the purpose of 4 was only to notify that there may be a violation and, if it occurs after the 6th absence, no harm, no foul.

Defendant argues that (5) was not met, because there were already 10 absences when a the first sit down conference occurred with the school counselor. As long as there was good faith effort made to meet with the parent and analyze the problems, #5 is met, even if it occurs after the 10th absence. Both the 3-day and the 6-day letter said "Come meet with us." That's enough for good faith. (Note: The child ultimately got 21 unexcused absences, which, while not discussed in the argument section, had to be a big push factor in this case. I mean, if after the 10-day conference, there were no more absences, these legal arguments might have had more legs).

State v. Norton. Defendant charged with failing to remain at the scene of an accident involving property damage, assault with a deadly weapon on a government official, felony driving to elude arrest, possession of drug paraphernalia, reckless driving, assault on a government official, resisting a public officer, speeding, driving while impaired, and attempted robbery.

Facts: Defendant seen breaking windows a vehicle in a motel parking lot. It was his car. He got inside and began driving on the wrong side of the road. A high speed chase ensued (70 in a 35). He got away. Twice.

Later, they found him at the motel again "doing donuts in the middle of the road and then driving into oncoming traffic." He cursed and flipped off law enforcement, yelling "come on." Another chase pursued, where defendant ran red lights, drove through a metal gate onto a golf course and ran several motorists off the road. He got away again. Sometime later, he crashed into another car, then drove away again.

Then, later, he got pulled doing 100 miles an hour, passing cars in the emergency lane. At one point, he was seen driving with the door open and his limbs hanging out. He wrecked, then fled on foot. He found the cops and was eventually tased. His BAC was .03 (aka--not drunk) and there was cocaine in his blood. All in all, a pretty sweet episode of "Cops"

The jury returned guilty verdicts on every thing except RPO and assault on an officer (not guilty) and hung on assault on an officer with a deadly weapon and one count of failing to remain at the scene. He was sentenced to about 4 years.

1st) Sufficient evidence for DWI. DWI if "took a sufficient quantity of [drugs/alcohol] to lose normal control of bodily or mental faculties." Court said, on these facts, with the cocaine in the blood and a .03, that's enough.

2nd) No error in court refusing to allow a witness who was tendered as an "expert forensic toxicologist" to testify about the effects of cocaine in the body. Any error, if any, was harmless due to overwhelming evidence of impairment.

State v. Oates.
State appealed superior court suppression of evidence.

State gave written notice of appeal months before the judge filed the written order. The rules require that notice be given 14 days after entry of judgment (or orally at trial). Here, the judgment was the written order.

Because the state didn't enter oral notice and didn't file its written notice within 14 days after the entry of judgment (rather, it filed it months before entry of judgment), the appeal was not perfected. Dismissed.

State v. Speight.
Appeal of conviction for first degree burglary, robbery with a dangerous weapon (RWDW), first degree sex offense, and second degree kidnapping. Sentenced to approximately 52 years in prison.

Defendant convicted for home-invasion sex assault. Convicted based on eye-witness ID and fingerprints.

1) No error under 404(b) in state submitting defendant's statement, upon arrest, that "Man, I'm a b&e guy." The fact that he was a "b&e" guy, was relevant to the charge of burglary.

2) Indictment for burglary not fatally deficient. Indictment deficient if it fails to state an essential element of an offense. Here, the predicate felony for burglary listed was the intent to commit "unlawful sexual acts." A breaking and entering must be committed with the intent to commit a felony inside to be a burglar. This was sufficient to give defendant adequate notice.

3) Substantial evidence for RWDW. Must show defendant took property by using/threatening to use force with a dangerous weapon. Defendant broke into the victims house, put a knife to her throat, and negotiated with her about whether she had more money. This is substantial evidence of a RWDW.

4) Defendant was not entitled to instruction on lesser included offense of common law robbery. The difference between common law robbery and RWDW is the use of a dangerous weapon. No evidence here that defendant committed the crime, but without use of a dangerous weapon.

5) Defendant not entitled to instruction on the lesser included offense of 2nd degree sex offense. The difference between 1st and 2nd degree sex offense is the use of a deadly weapon. Here, there was no evidence that defendant committed the sexual offense, but without use of a dangerous weapon.

State v. Wright.
Appeal of eight convictions arising out a shooting incident at a barbershop in Clinton.

Defendant fired five shots into a barbershop from a car. One man was hit, but lived. He was convicted of
  1. Attempted murder on one by-stander
  2. Attempted murder of the guy he shot
  3. Assault with a deadly weapon with intent to kill inflicting serious injury on the guy he shot;
  4. Two counts of discharging a firearm into occupied property inflicting serious injury
  5. Two counts of discharging a firearm into occupied property
  6. Discharging a firearm within city limits
He was sentenced for with three of the sentences running consecutively, for a total of 36 years.

1) Defendant argues that it violated double jeopardy to charge him with multiple crimes for the same transgression (firing into the barber shop). Defendant argues he can only be convicted of 1 count of attempted murder and 1 count of AWDWIKISI. However, in a multiple gunshots fired situation, you can only be charged with one assault and one murder, per victim. Since there were two victims, no problem with the two charges.

2) No error in judge holding part of the sentencing proceeding (a pre-trial conference in chambers) outside of the defendant's presence. Under the NC Constitution, Article I, Section 23, the accused has the right to be present at "every stage of his trial." While this was error, it was harmless.

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