Tuesday, July 5, 2011

NC Court of Appeals Criminal Decisions, 7/5/2011

State v. Billinger. Appeal of conviction for possession of weapon of mass destruction and conspiracy to commit robbery.

The state alleged that defendant and some friends were driving around. They considered robbing a Hardee's but it was closed. Then, defendant asked to be dropped off a Food Lion, to "find some money" and that he was going to try and rob it or "something like that."

Defendant then approached a man in the parking lot and told him to give him his money. In the excitement, defendant discharged the shotgun and hit the victim in the arm, then ran away without taking any money. Defendant's friends picked him up.

Defendant was charged with attempted murder, attempted robbery, assault with a deadly weapon with intent to kill inflicting serious injury, conspiracy to commit robbery, and possession of weapon of mass destruction. The jury acquitted on all counts except for conspiracy and possession.

First, held that state presented sufficient evidence of possession of a weapon of mass destruction. Defendant concedes a sawed-off shotgun is a weapon of mass destruction and sufficient evidence of constructive possession in statements of friends that defendant owned a shotgun that looked like the one recovered.

Second, the indictment for conspiracy was fatally defective. An indictment is defective if it fails to allege all the elements of a crime or give defendant adequate notice of the crime charged. A conspiracy is (1) agreement of 2 or more people, (2) to commit crime, and (3) with intent of at least 2 of them to commit crime.

The indictment simply said "defendant named above unlawfully, willfully and feloniously did with Jevaris Charan McArn, Kerry Kurtis Braithwaite, and Jonathan Wilson Jackson to commit the felony of Robbery With a Dangerous Weapon." It left out any operative language (i.e. did agree to commit, etc). The indictment failed to allege an agreement and is thus fatally defective.

Conspiracy conviction vacated.

State v. Cleary. Defendant had pending criminal matters and a pending probation violation. Defendant and the state tendered a plea agreement, intending to resolve the probation violation and the criminal charges at the same hearing. The court rejected the plea, then refused to continue the probation violation hearing. This caused the defendant to enter a worse plea to be able to wrap them all up together.

Under 15A-1023(b), a defendant is entitled to a continuance if the trial judge refuses to accept a plea. Defendant argues that, under these circumstances, the statute provides a right to a continuance in the criminal case and the probation violation case. Held: No such right. No error in court refusing to continue the probation violation. The right only extends to the criminal case in which the plea was rejected.

State v. Joe. Appeal of conviction for resisting, delaying or obstructing a police officer and possession with intent to sell cocaine.

At a pre-trial hearing, the defendant moved to suppress the evidence. This was granted and the judge went on to dismiss the RDO and the possession charge. State appeals.

Evidence: Officer testified that he was in a high crime area at 2:00am and saw the defendant, a black man standing on the corner with a hoody on. When the officer, in a "jump out van," saw the van, his "eyes got big" and he turned and walked behind the apartment building. The officer jumped out to "engage in a consensual conversation with the defendant." Defendant yelled, "Police" and ran away. The officer began to chase him yelling, "Police, stop." Eventually found behind a unit. Officer ordered him to put his hands up. He didn't. Officer took him down. In the area where defendant had been seated, he found a bag of crack.

First, elements of RDO are (1) police officer; (2) defendant knew it was an officer, (3) the officer was discharging a duty of office; (4) the defendant resisted, delayed or obstructed the discharge of that duty, (5) willfully.

Flight from a lawful investigatory stop is RDO. However, flight from an unlawful stop or a consensual encounter is not RDO. While an officer may approach a citizen for a consensual encounter, the citizen can refuse to converse or even run away. Only when there is a legal stop (attempted stop) and non-compliance can RDO be found. Here, the officer did not have reasonable suspicion to stop the defendant. All he had done was stand outside with a hoody sweatshirt on in a high crime area. That is insufficient basis for a stop, all running aside. The officer's stop (after defendant fled) was not lawful, thus no RDO.

Second, the suppression appeal is not perfected, because the state entered a VD after the suppression was granted.

State v. Norman. Appeal of conviction for two counts of 2d murder, DWI, and speeding. Sentenced to 33+ years in prison.

Harley and Helen Carter were driving east on Pleasant Ridge Rd. They came to a stop sign. Stopped. Then turned left in front of defendant's truck, failing to yield the right of way. He was on Old Highway 21 and had no stop sign. He was speeding at 75 miles an hours. He slowed to 60 by the time the collision occurred. The speed limit was 45 MPH. An expert testified that the collision could have been avoided by breaking or veering to the right.

Defendant was given a blood test about an hour and a half afterwards (8:06pm) and his BAC was .03; at 8:49pm his BAC was .01. He also tested positive for cocaine. A forensic toxicologist testified that, using regression analysis, his BAC at the time of the accident was .08 and that his cocaine use was recent. He admitted to officers that he drank 4 beers.

Defense expert testified that the cocaine was consume within 9 hours of the accident and the accident could have occurred after it wore off.

First, no error in a lay witness who was at the scene, testifying that defendant appeared impaired. Lay persons can give opinions if it is rationally based on their perception. This was.

Second, no error in submitting as 404(b) evidence, the defendants' prior convictions for DWI. They were relevant to show malice. They were from 1995, 2001, and 2006. The DWI portions were relevant and recent. Extraneous matters (RDO and paraphernalia convictions attached to some of them), may have been irrelevant, but they were harmless.

Third, state's expert, Mr. Glover, was appropriately qualified as an expert at trial. Two issues: (1) is the method sufficiently reliable and (2) is the expert sufficiently qualified in the area. Defendant only challenges the second prong. Mr. Glover was sufficiently satisfied: he took a 36-hour course in 1998 and a 28 hour course later on the issue and was the head of the Forensic Test for Alcohol branch at the NC DSS. He has published on the issue and been qualified previously. His lack of formal degree is not fatal.

Fourth, Glover's opinion about the amount of cocaine in the defendant's system was not so unreliable as to be inadmissible. His half-life analysis was sufficiently reliable, even if it was disputed by the defense expert.

Fifth, sufficient evidence of malice for 2nd degree murder. :"Sufficient evidence of malice exists . . . where the defendant's acts show cruelty, recklessness of consequences, . . . or manifest a total disregard for human life." Multiple prior DWIs, combined with a present DWI and speeding is sufficient evidence of malice for 2nd degree murder. Further, defendant's actions were the proximate cause of death. Defendant argues that the victim's failure to yield was the proximate cause. However, there was substantial evidence that, despite the victim's violation of driving rules, defendant had the last clear chance to avoid a wreck and could have, if he was sober.

Sixth, no error in running the two 2d degree murder convictions consecutively. No evidence in transcript that this was done to punish defendant for exercising right to trial.

Here's the transcript. Not surprising he got dinged and, in the COA's opinion, nothing inappropriate about the judge's action.

[DEFENDANT]: First of all, I was not impaired. I know on account of my record why I was convicted. That's the only thing. . . .

THE COURT: But do you, do you think it's okay to drink four beers and then get into a
car and drive?

[DEFENDANT]: Sure do.

. . . .
THE COURT: . . . Because you know what's wrong, the problem with the DWI law? Exactly what you just said, people trying to figure . . . how close they can get to the limit and still drive when they should be trying to figure out how to stay as far away from the limit if they're going to drive.

. . .
THE COURT: Mr. Norman, here's the problem, . . . With one, two, three, four, five prior DWIs if your mind is thinking that you should drink anything and drive it's messed up! It's messed up! If you think that it's okay after five DWIs to drink and drive anything out of your yard your mind is messed up, your reasoning is messed up! You're still thinking it's . . . okay. People [who] drink and drive and drive impaired always think it's okay.
. . . .
THE COURT: Even the people who blow thirty something still think they're okay. Now, I
want you to be quiet because anything after, you say after this point is just going to cause me to raise the amount of time I give you in this case. . . . Mr. Norman, I'm tempted to give you the maximum sentence in this case but it's sort of counterproductive. You're fifty-five years
old. I don't have to. If I give you thirty years you'll be eighty-five years old if you do the best you can do and you're in the minimum of sentences. If you get to the maximum, which is more up to two hundred forty-nine months, plus two hundred forty nine months, you'll have to be one of the oldest people in North Carolina in order to get out. So I don't have to give you two twenty [-year sentences] back to back in order to do that. . . . I do believe that this accident happened . . . because the Carters pulled out of the intersection. But, the fact of the matter is . . . that you . . . make bad decisions that put yourself at risk and put other people at risk because you don't have an appreciation for alcohol and yourself and you still haven’t learned and it's now been since 1973
that you keep experimenting and hoping that you're going to take this — well, since 1972
— that you're willing to keep taking this chance. And the sad part is, just since 1990 you've been doing it more often rather than less often. And you stand up in court . . . and all you do by standing up in court is justify. And, let me tell you, that's appalling. You'd been a lot better off if you hadn’t stood up and said one single solitary word, but you did. Sometimes you help yourself, sometimes you don't.

First rule of sentencing, if you're going to say anything, say you're sorry for those two people you killed...

State v. White. Appeal of conviction for 3 counts of sell marijuana, one count of delivering Percocet, one count of possession of firearm by a felon, and one count of possession non-tax paid alcohol.

Defendant arrested for making sells to officers/informants during controlled buys. When the officers were executing a search warrant on his house, defendant was present and had a loaded handgun in his pants. Defendant lost 2nd amendment motion to dismiss and motions to suppress. Entered plea, specifically reserving the right to appeal the motions to dismiss and suppress and appealed.

Trial court erred in accepting defendant's plea with term in it that he reserved the right to appeal the motion to dismiss. Upon guilty plea, a defendant can only reserve a motion to suppress; he cannot reserve a motion to dismiss. The court lacks jurisdiction to review that motion. Because the trial court erred in accepting a plea with that term, the plea is vacated.

Dissent by Steelman: Argues that the appeal should be dismissed as neither issue is perfected, because the defendant didn't provide copies of the underlying motions that were filed at trial.

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