Friday, July 29, 2011

Court of Appeals Criminal Decisions, July 19, 2011

Reversals.

State v. Floyd. Buncombe County. Appeal of revocation of probation.

Defendant convicted for failing to register as a sex offender and given 36 months supervised probation, with 15-18M suspended sentence. Court imposed the special condition to "participate in sex abuse treatment program and complete to the full satisfaction of the treatment provider."

Probation officer filed a motion to revoke probation for failing to pay costs, fines, and supervision fee of $1,680.50. Defendant then filed an affidavit of indidency.

The next month, the probation officer filed another motion to revoke probation for failing to comply with the special condition. At hearing, it was learned that, while defendant complied with the sex abuse treatment, he was ultimately discharged unsuccessfully for failing to pay.

Defendant testified that he was laid off and got another job with a plumbing company (making $10.00). There, he got electricuted and had been out of work indefinitely due to serious injuries. Defendant argued he had not willfully violated probation, as he could not afford to pay. Trial court found a willful violation and revoked him.

HELD: Defendant's violation was not willful, because he was unable to pay. It is unconstitutional and violates 15A-1345(e) to revoke someone for their inability to pay.

Court also notes that, under the Justice Reinvestment Act, a judge cannot revoke for failure to pay a fee.

State v. Pope. Harnett County.

Defendant, a City of Coats employee, embezzled money from the scrap metal recycling program. Defendant was a rival of the mayor and believed the prosecution was politically motivated, as other employees who participated were not charged.

Trial court dismissed based on selective prosecution and entrapment by estoppel.

Held: (1) No selective prosecution. A defendant is entitled to a dismissal if they can show that the state administered justice with "an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of justice is still within the prohibition of the Constitution."

To win, you have to show that: (1) you were singled out while others ere not; and (2) the discrimination was invidious and done in bad faith for "such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights."

No one ever wins these claims. While Mr. Pope convinced Judge Lanier, the COA took it away.

(2) Entrapment-by-estoppel is when a person, reasonably relying on statements of a government official that the conduct is legal, breaks the law. Insufficient evidence presented of explicit permission.

Reversed and remanded for trial.

State v. Sorrow. McDowell County. Appeal of revocation of probation.

Defendant charged with violating probation. At his first appearance, he signed a waiver, that was uncertified. A month later, the defendant admitted violation, represented himself, and was revoked. At the end, the court had him sign another waiver, this time certifying it.

Held: Waiver of counsel was invalid. Cannot hold a revocation hearing until you have a valid waiver. Here, no inquiry on right to counsel was held on the record. The written waivers notwithstanding, you cannot have a valid waive without a full inquiry to determine if the waiver is knowing, intelligent, and voluntary.

"Although the transcript shows that the trial court advised defendant of hisright to counsel for the probation revocation hearing, there is nothing in the record or the transcript indicating that the trial court conducted a thorough inquiry that showed that “defendant understands and appreciates the consequences of the decision to proceed pro se, and that the defendant comprehends the nature of the charges and proceedings and the range of possible punishments.”


Other Cases.

State v. Banks. Johnston County. Appeal of felony motor vehicle fleeing to elude arrest.

Defendant fled from police during a routine stop and eventually flipped his car.

First, to be convicted of felony (rather than misdemeanor) fleeing, the jury must find 2 of 8 aggravators (speeding, DWI, reckless driving, property damage, DWLR, speeding in a school zone, passing a stopped school bus, or having a child in the car). The Court instructed on this and submitted reckless driving, property damage, and DWLR to the jury. Defendant objects that court didn't make them find each one seperately and that this created a risk of a non-unanimous verdicts (jurors finding different aggs). Courts instruction found adequate.

Second, court did not explain what reckless driving means. Not plain error.

Third, defendant argues there was insufficient evidence of damage to property, even though the $1,000 of damage was exclusively to defendant's car. Court doesn't rule on this issue, finding there was adequate evidence of DWLR and reckless driving.

State v. Brown. Wayne County. Appeal of possession of firearm by a felon.

Police observed a house with heavy foot and vehicle traffic. Saw defendant walk from house to front of police vehicle. Police got out (one wearing a "police" t-shirt). Defendant "nervously" asked for a cigarette. Told him to put his hands on the car and asked him if he had a weapon. Defendant said yes and they found the gun.

Sole issue: IAC for failing to raise a motion to suppress on the grounds of an invalid stop. Here, there was reasonable suspicion because (1) defendant approached the police, causing them to fear for their safety; (2) high crime area; (3) prior drug arrests in front of the house; (4) lots of car and foot traffic around the home; and (5) when defendant noticed the people in the car were police, his demeanor changed and he became nervous.

State v. Carrouthers. Mecklenburg County. Appeal of denial of motion to suppress.

The trial court suppressed finding that the defendant was unlawfully seized when he was placed in handcuffs. It came up to the COA and they remanded for further findings of if the cuffing was necessary to carry out an investigatory stop (reasonable suspicion plus "least intrusive means", rather than a straight p/c standard). See post on that decisions here.

The trial court then upheld the search and defendant appeals.

Officer witnessed what he believed to be a hand-to-hand drug transaction. The defendant denied it, saying he passed a cigarrette. The officer frisked the defendant and felt a lumpy item "consistent with narcotics." The defendant was handcuffed for "officer safety," because there were two other individuals in the car. Searched and crack found.

HELD: Two other people standing outside the car was a "special circumstance" that justifies cuffing a suspect for completing a Terry frisk, if there is reasonable suspicion. Here, there was not probable cause, but there was reasonable suspicion. "Cuffing of suspects during [a] Terry stop where suspects outnumbered officers and where officers were concerned for safety was reasonably necessary to achieve purposes of Terry stop."

State v. Castillo. Orange County. Appeal of 1st degree murder, discharging a weapon on educational property, discharging wepon into occupied property, 2 counts assault with a deadly weapon with intent to kill (AWDWIK), 2 counts possessing a firearm on ed property, and 3 counts of possession of a weapon of mass destruction.

On August 30, 2006, defendant shot and killed his father, then went to the Orange High School with pipe bombs, a sawed off shotgun, and a rifle. He set off smoke bombs and shot into the air, then shot at students who were standing outside. Here's an article on it from the time.

The defense put on an insanity defense, focusing on defendant's prior suicide attempt, fixation with the Columbine shootings, and psychological history. Defendant stated to the officers who accompanied him to jail after the shootings that he "was going to save those kids from sex, drugs, pornography, and abusive people like [his] father in their lives[.]" An expert for the defense testified that the defendant knew his conduct was legally wrong, but believed it was morally right.

First, trial court did not err in refusing to instruct the jury that the insanity defense applies if a defendant believes his conduct is morally right. The insanity instruction includes being "incapable of distinguishing between right and wrong." Held that this wasn't plain error, because the defense argued this distinction and the jury was still instructed on insanity. As such, jury confronted this issue (and as such, apparently ruled that he was did not believe his actions were morally right), even though they were not directly instructed on it.

Second, state during closing said,

"But -- so the defense in his case, they are faced with the dilemma. You know what the defendant has been thinking about. You know about all these plans. You know about all these preparations. So a factual defense just isn't going to work. So where do you go next? Well, obviously because the defendant did have mental illness the next place to go is --"

Defendant then asked to approach and a bench conference was held and was unrecorded. As such, any objection and ruling was not preserved for appeal.

Standard then whether the judge should have intervened "ex mero motu" -- if it was so prejudicial and grossly improper as to interfere with the right to a fair trial. Held that this didn't go that far.

State v. Ellison & Treadway. Ashe County. Appeal of trafficking in opium convictions of two defendants.

Basic facts: Informant the cops that that a John Shaw would fill a hydrocodone subscription, give it to Treadway, who would then sell it to Ellison and then come back to Shaw with some of the money. During one transaction, police pulled over defendant (based on the informant info and tracking Shaw's transactions at a CVS pharmacy), and found the drugs.

Issue #1: Trial court denied a motion to dismiss and disclose the informant's identity.

First, stop was legal, as there was reasonable suspicion. Informant was reliable, given the CVS trail (police waited for Shaw to fill the prescription, then followed it into Ellison's hands).

Second, no error in refusing to give info about the informant. Under 15A-978(b), you only have a right to the identity of the informant if there is no corroboration of the informants existence (i.e. reason to believe the informant does not exist). Here, the existence of the informant was not in doubt. (Note: appears that he didn't raise the constitutional issues regarding informants).

Issue #2: Challenges the trafficking statute as cruel and unusual, given the small amount of drugs Lorcet pills that qualify as trafficking in opium (because they count the filler weight, not just the active ingredients). Liability for trafficking includes the total weight of the pills, not just the active part. No error.

Issue #3: No error in joining defendants for trial. Fact that prior crimes of one co-defendant came in didn't unfairly prejudice the other co-defendant. The testimony was only about a few drug transactions and didn't take up more than 2 witnesses of time. Not unfairly prejudicial.

Issue #4: No 404(b) error in putting in prior crimes, since they were relevant to establishing knowledge of drug trade and not unduly prejudicial.

Issue #5: No error in testifying that hydrocodone is an opiate on rebuttal. The Judge led the state do this after defense made a motion to dismiss at the close of all evidence, pointing out the missing element. Defendant argues it was offerred for the sole purpose of curing state's failure to present evidence that the drug was opium, rather than appropriate rebuttal purposes.

NCGS 15A-1226 gives trial judges clear discretion to permit a party to introduce additional evidence at any time prior to a verdict. No error.

State v. Griffin. Forsyth County. Appeal of conviction for obtaining property by false pretense (OPFP).

A surveillance video showed defendant stealing someone's purse. 20 minutes later, a credit card in the purse was used to purchase a computer from Walmart, about 3 miles away.

First, sufficient circumstantial evidence where the OPFP was made within 20 minutes, using the stolen card.

Second, indictment for habitual felon was not facially defective. List of the prior as "Possess Stolen Motor Vehicle", rather than "Possession of Stolen Motor Vehicle" is, at worst, a technical deficiency and provided adequate notice to the defendant. ("We hold that defendant’s argument is “hypertechnical” in nature.")

State v. Lee. Wayne County. Sentenced to 58 years.

Defendant charged with twelve armed robberies with a sawed-off shotgun, wearing a camoflauge jacket and a black ski mask, stealing money and Newport cigarrettes. Jury convicted on 10 counts.

First, no plain error in court failing to declare a mistrial when a potential juror, during jury selection, said, "“I really can’t say because I know some of Mr. Lee’s record . . . I’ve dealt with him in district court." This did not affect his right to a fair trial.

Second, no error on instructing on doctrine of recent possession. To get a recent possession instruction (that the jury may infer guilty from recent possession of stolen goods) the state must present sufficient evidence that:

(1) The property was stolen
(2) The porperty was found in defendant's custody and subject to his exclusive control; and
(3) Recently after the larceny.

Here, defendant found with Newport cigarettes shortly after a robbery. He argues that the state had not proven the Newports were stolen (i.e. they are fungible and how can you tell one pack from another). Held that the Newports had sufficient circumstantial basis for a jury to find that they were stolen-- that they were the same amount (packed in a plastic bag "to the bursting point" with Newport Cigarettes) and there was a sawed off shotgun and camoflauge jacket next to them.

Third, no error for convicting the defendant of 10 counts of possession of a firearm by a felon and possession of a weapon of mass destruction for each robbery, even though each possession was of the same weapon. If the weapon is used to commit multiple substantive offenses that are not part of one continuous transaction, you can get dinged for possession on each one.

State v. Leonard. Wake County. Appeal of DWI, AWDWISI, Serious injury by motor vehicle, fleeing to elude arrest, hit and run, and habitual felon.

Defendant, drunk, during a domestic dispute, drove his car into his girlfriends car, then drove away. Stopped when an officer, who heard about the incident, saw him driving with his bumper hanging off. He ran a red light at 55 mph, trying to avoid being arrested. He crashed into someone else, injuring them.

1) Defendant challenges the serious injury by motor vehicle, which requires proof that the injury was proximately caused by a DWI violation. Defendant argues that the cause was running the red light and eluding arrest, not the DWI. DWI need not be the only cause, just a cause. Given that he was drunk, sufficient evidence was presented as a jury could determine that, if he had been sober, he could have (even if he was eluding arrest) avoided the accident.

2) Sufficient evidence to aggravate the eluding arrest to a felony. To be convicted of felony eluding, the jury must find two aggravators: speeding, DWI, reckless driving, negligent driving causing property damage, DWLR, school zone violation, passing school bus, and having a child in the car with you.

Defendant argues (a) the indictment fails to adequately charge the aggravating factor of reckless driving and (b) the proof of DWLR violated his confrontation clause righs (using a notice that was mailed to him).

(a) Indictment was valid, as it said reckless driving, even if it didn't specifically allege how the driving was reckless.

(b) State used an affidavit of a DMV employee to show that he had notice of his DWLR. No objection when admitted, thus confrontation issue was waived. No plain error, since 2 other aggs (reckless driving and property damage) present.

State v. Mungo. Mecklenburg County. Appeal of sentencing for habitual felon.

Held: No error in state using one prior felony to make the case habitual and a different felony that was sentenced the same week to count for prior record level points. While felonies convicted in the same week cannot be double counted for prior record level (and felonies used for habitual felony cannot be used for prior record level), when there is two in one week they can be used for habitual and prior record level.

State v. Phillpott. Edgecombe County. Appeal of 1st degree murder conviction.

During a "drug deal gone bad," defendant shot and killed the dealer.

First, the state called an eye-witness, who testified that the defendant was not the shooter. Then it called a detective to testify that the eye-witness previously told him it was the shooter, including picking him out of a line-up.

Court goes on a contorted explanation of why this eye-witness statement was not inconsistent with the statement offerred by the police. Thus, not an inappropriate prior inconsistent statement and thus no problem (because if the state isn't surprised, they don't get to put up prior inconsistent statements). Further, the inconsistency of the out-of-court ID and the in-court refusal to ID was not properly objected to and not preserved.

Second, no error in refusing to grant mistrial when, after 7 hours of deliberating, a juror said that deliberations would not change anything (after they came back the next day, they convicted). Since it was only 7 hours, not a gross abuse of discretion.

Third, sufficient evidence presented where two people saw defendant with victim, heard gunshots outside the room, and when came back in victim was dead.

Judge Beasley concurred in a seperate opinion, stating that he believes the statement was inconsistent, but that the prior inconsistent statement was allowable as the state was surprised.

The case on "surprise" is: "The trial court may permit the State to impeach its own witness when “the district attorney has been misled and surprised by [its] witness, whose testimony as to a material fact is contrary to what the State had a right to expect.” State v. McDonald, 312 N.C. 264, 269, 321 S.E.2d 849, 852 (1984)

State v. Stanley
. Greene County. Appeal of possession of controlled substance in jail.

First, defendant argues judge erred in not removing his restraints during trial. Case law shows that shackling a defendant violates the presumption of innocence and can be prejudicial. However, it is allowed when the judge finds "the restraint to be reasonably necessary to maintain order, prevent the defendant’s escape, or provide for the safety of persons." Here, defendant was incarcerated on charges of murder and kidnapping. For that reason (alone) the judge said it was unsafe for him not to be shackled. Held that this was not an abuse of discretion. Further, while it was error to failing to instruct jury not to hold the shackling against the defendant, this was not prejudicial.

Second, one officer testified about orders given him by another officer. This was not hearsay as it was not offerred for truth, but rather to explain the officer's subsequent conduct.

State v. Stephenson. Gaston County. Appeal of probation revocation.

Defendant was sentenced to probation, with condition that she enroll and complete drug treatment at a local organization. She was charged with violations for testing positive for drugs and being thrown out of the drug treatment program.

First, no error in not giving defendant credit for time spent in the in-patient treatment program against her sentence. Custody in a drug treatment facility (such as DART-Cherry or IMPACT) can count towards a sentence if it is actual "confinement." Here, the facility (the Potter's House) was run not by DOC. If it is run by the state and requires confinement (like DART-Cherry or IMPACT), then it counts. If not, it doesn't.

State v. Wade & Young. Cleveland County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) and firearm by a convicted felon.

During a party, where people were drinking and using drugs, a fight broke out. Terrance Ross's girfriend asked Wade to give her a ride somewhere. He then smacked her in the face. Arguments ensued and Young asked Wade to "let me see the heat" and Wade gave him a gun. Then Young shot Terrance Ross three times. Ross lived. Then the defendant's left together.

One witness testified that there was a scuffle and fight over the gun, whereas the victim said that, while he had a fight with his girlfriend and words with the defendants, the shooting was an unprovoked attack in the back.

First, state objections were sustained to questions posed to different witnesses about: (1) the victim being a convicted felon; (2) observations about how intoxicated other witnesses were; (3) whether the victim was "favoring his back pocket like he was getting ready to whip his gun out; (4) after defendant left, the owner of the house said "lets go get a gun and re-up"; (5) a witness overhearing someone say "get my gun, get my gun." Found that these were either not preserved or harmless.

Second, state "impeached" the victim by inquiring about prior statements made at the probable cause hearing, based off the DA's memory of the PC hearing (as there was no transcript), to which the victim said he "couldn't recall." Held that it was harmless error.

Third, no inconsistent verdicts in the jury convicting on AWDWIKISI and acquitting on attempted murder. Verdicts only impermissible if "mutually exclusive." Here, they have some overlapping elements (intent to kill and failure to kill), but the rest are different.

No prejudicial error.

State v. Whitley. Durham County. Appeal of attempted breaking and entering.

Facts: Victim heard a noise outside her house and saw a black man, in a black shirt, with a do-rag, and with two puffy poneytails. She hit the window and he ran away. Officers were familiar with someone matching that description and went to his house. He was wearing a white shirt and "two big puffy ponytails." Officers searched him and found a do-rag and latex gloves in his pocket. They did a show-up and he was ID'd by the victim.

1) Insufficiency waived as motion was not renewed at the close of all evidence.

2) A witness for the defendant said he saw the defendant walking in another neighborhood at the time of the crime. The state put on a prior inconsistent statement that he saw defendant and another person walking together. No analysis--found harmless.

3) No error in court failing to define "larceny" for the jury.

State v. Wingate. Lincoln County. Appeal of PWISMD cocaine.

Only issue is prior record level at sentencing. Defendant argues the state did not prove the priors.

To prove priors, the state may meet it's burden through:

(1) Stipulation of the parties;

(2) An original or copy of the court record of the prior conviction;

(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts; or

(4) Any other method found by the court to be reliable.

Defendants priors included sell/deliver cocaine. If it's a sale, it's a class G; if it's a delivery, it's an H (4 versus 2 sentencing points). Defendant argues that this was a question of law, not fact, and his stipulation in the plea transcript (that it was a G) was not valid. HELD: This was a question of fact, the defendant stipulated to it, and thus the state met it's burden

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