Monday, August 29, 2011

NC Court of Appeals Criminal Decisions, August 16, 2011


State v. Anderson. Wilson County. Court erred in allowing defendant to represent himself.

Defendant was arrested for selling a controlled substance. At his first appearance in District Court, defendant waived his right to counsel by signing a "Waiver of Counsel." This was certified by the presiding District Court judge.

Subsequently, he was indicted for selling and delivering a controlled substance and obtaining the status of a habitual felon. He appeared in Superior Court and signed another waiver of counsel, which was certified. He represented himself and was convicted.

Sole issue: Was defendant's waiver of counsel knowing, intelligent and voluntary. State v. Reid sets out the guidelines for making a valid waiver. The judge must advise him of his right to counsel, ensure that he understands the consequences of a waiver, and understands the nature of the charges and range of possible punishments.

First, there is no transcript of the defendant's district court appearance, so we cannot tell if he was informed of the charges. Therefore, the district court waiver is invalid.

Second, the Superior Court waiver was invalid. The court failed to tell the defendant what charges he was waiving and what his potential punishments were. It is also not clear that the trial judge explained that he could get court appointed counsel (all the court said was that he could fill out a waiver request).

Judge Bryant dissented.

State v. Heien. Surry County. Trafficking conviction. Held that one brake light out is not a legitimate basis for a traffic stop.

First, challenge to the stop. Officer saw one of defendant's brake lights was out and stopped. Defendant argues that one functioning brake light does not violate 20-129(g), 20-129(d) or 20-183.3, and thus did not give rise to reasonable suspicion.

20-129(g): "No person shall sell or operate on the highways of the State any motor vehicle...unless it shall be equipped with a stop lamp on the rear of the vehicle." A stop lamp means just one. He had one working light, thus no violation.

20-129(d): Requires "all originally equipped rear lamps or the equivalent [to be] in good working order." These are separate and distinct from a "stop lamp," thus no violation.

20-183.3: Safety inspection requires functioning "Lights, as required by G.S. 20-129 or G.S. 20-129.1." As discussed above, this means only one light, thus no violation.

Because no violation, no reasonable suspicion for the stop, as having one working brake lamp is sufficient. Evidence should have been dismissed.

State v. Salinas. Rockingham County. Appeal of drug suppression order.

Police called about an erratic driver. They arrived and located the car. Saw the driver drive up onto a curb, back up, and pulled out into traffic, crossing over the lane while doing so. The officer saw he was not wearing a seatbelt and made a stop. During the stop, the officer smelled weed and searched the car, finding paraphernalia. He appeared intoxicated to the officers and made incriminating statements.

Trial court suppressed the evidence. State appeals.

First, at the suppression hearing, the state and defense repeatedly referred to "probable cause" to make the stop. Only reasonable suspicion is necessary to conduct a traffic stop. Because the trial court used the wrong standard, the case is reversed and remanded for re-evaluation.

McCullough dissents in part, arguing that the COA should rule that the stop was valid, rather than remanding for re-evaluation.

State v. Seymore. Pasquotank County.

Defendant signed a waiver of counsel in a DWI case. The court did not conduct a thorough inquiry.

To waive counsel, the court must inform you of your right to hire counsel and to apply for court appointed counsel and the nature and exposure of the charges you face. Here, court did not do that. Superior Court transcript was not thorough on this issue and the District Court hearing was not transcribed.

Remanded for new trial.

State v. White. Moore County. Appeal of denial of motion to suppress in drug case.

Facts: After dark, officers responded to an anonymous loud music call at an intersection. This was a high crime area. When they arrived, officers saw 3-4 men standing near a dumpster and no lound music playing. They questioned them about the loud music. As they got out of the car, the police yelled, "Stop, Police!" And the men took off running. Defendant tripped and fell. A detective jumped on top of him and handcuffed him. Police found a bag of crack on the ground next to him.

First, police lacked reasonable suspicion (obviously?) to conduct the investigatory stop. An unlawful seizure was attempted when they yelled, "Stop Police" and it occurred when the officer tackled the defendant. Defendant's flight does not provide reasonable suspicion, as there was no evidence that he fled knowing they were cops.

(An interesting note, however, is the court doesn't address the fact that the crack was on the ground and was arguably abandoned before the unlawful seizure occurred).

Other Cases.

State v. Arrington. Harnett County. Appeal of DWI.

At trial, evidence showed that defendant had glassy eyes and smelled of alcohol. His first roadside test was negative, his second positive. Back at the station, his BAC registered as .08 twice.

First, evidence was sufficient for conviction. Defendant argues that since he got a .08, when considering the margin of error, the court could not as a matter of law presume sufficient evidence was presented. The test was properly administered and reliable and sufficient for submission to the jury.

Second, judge entered judgment and added additional costs and community service fees outside the presence of the defendant. Defendant argues this violated his right to be present at the time the sentence in pronounced. Defendant was sentenced to community service in open court. The statute (143B-262.4) requires a $250 fee if community service is included. The ordering of community service, even though no mention of the fee was made, was adequate to have "entered judgment in the presence of the defendant."

State v. Castaneda. Mecklenburg County. Appeal of 2d murder conviction.

Defendant and victim got in a fight at a barbeque. The victim slapped defendant first, and then he stabbed him to death with a kitchen knife. Defendant tried for 1st degree murder; convicted of 2d and sentenced to 13 years.

First, defendant argues that the court erred in admitting the transcript of the interview by police, without redacting portions where the detectives say they don't believe the defendant and that other witnesses saw the defendant pick up a knife and stab the decedent. After which, defendant changed his story. Defendant argues that these statements are double hearsay (of the detective and of the 3rd parties).

State argues that these are not hearsay, as they were not offerred for the truth of the matter asserted. Rather, they are simply offered to explain subsequent actions. They simply provided context for defendant's answers and to explain the detective's interviewing techniques. Because defendant changed his story in response to those statements, they are admissible as non-hearsay. Likewise, because they were not admitted for truth, no confrontation clause problems.

Second, statements of the officer that defendant was lying was not impermissible opinion evidence. Accusations, during interrogations, are admissible as an interrogation technique, not as an opinion. No error.

State v. Flaugher
. New Hanover County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), robbery with a dangerous weapon (RWDW), maiming without malice, and possession of a stolen motor vehicle.

Defendant charged with hitting a man she was living with with a pickaxe and stealing from him.

Defendant allegedly previously assaulted him with a fork, injuring his hand. That case was voluntarily dismissed by the case.

First, At trial, evidence of the prior assault came in. The defendant argues it was impermissible under Rule 404(b) and constitutes plain error.

Held: Cannot, under 404(b), put in evidence of prior crime if defendant was tried and acquitted. If the case was simply dismissed, it may be admitted if there is sufficient evidence (as in any 404 issue).

Second, no error in instructing the jury that, as a matter of law, a pickaxe is a deadly weapon.

Third, double jeopardy argument (for Maiming and Assault) is waived, as it was not raised below.

State v. Johnson. Onslow County. Appeal of PWISD opium, trafficking opium, maintaining a vehicle, and possession of drug paraphernalia. Sentenced to 37 years.

Defendant arrested in controlled buy for selling 180 Vicodin pills for $350.00. The defendant had a prescription for the pills for pain caused by his diabetes, that he got from the Veteran's Administration.

No officer actually saw the money change hands, but the informant-buyer walked away with the pills and the defendant, upon arrest, was found with the $350. There was a video of the sale from the informant's camera and they showed this frame-by-frame to the jury.

First, defendant argues that it was error to sentence for both possession with intent to sell and trafficking, since they involved the same conduct. There is no double jeopardy problem and no "mutually exclusivity" problem (since proof of one does not preclude proof of the other).

Second, no error in finding that items on schedule III are "opium derivatives" for purposes of the trafficking statute (some opiates are on schedule III and some on schedule II, depending on the concentration of the narcotic to non-narcotic in the pills). The trafficking statute applies to the total weight of the pills (not just the narcotic portion). Thus, even though the schedule III of the same weight as schedule II will have much less opiate in it, it still qualifies as trafficking under this statute.

Second, no error in allowing the state to play an enhanced video, with blow-ups and frame by frame during closing. The court allowed it stating that it was the same evidence offered at trial. This was not an abuse of discretion.

Third, counsel was not ineffective for failing to object to characterizations of the buyer as a "confidential and reliable informant." Did not deprive of a fair trial, especially since there was a video.

37 years for this? What a collossal waste of taxpayer money...


State v. Khouri. Avery County. Appeal of convictions for multiple counts of indecent liberties, first degree sex offense, statutory rape, and statutory sex offense.

Defendant indicted for multiple incidents over a period of years against his grand daughter. As she aged, his actions violated different statutes.
  • 1st degree sex offense was under 13 (2000-2001)
  • Indecent liberties with a minor between 2000-2005
  • Statutory rape and statutory sex offense of a person 13, 14, or 15 (2002-2005)
First, while the court found there was sufficient evidence for most counts (the victim testified). One set of charges in the indictment indicated the offenses occurred in 2000. On the stand, the victim testified that the abuse began in 2001. These convictions (one 1st degree sex offense and indecent liberties) are vacated.

Second, no error in admitting 404(b) evidence of another child he abused (after this incident). Relevant to common plan or scheme. The crimes were sufficiently similar (both occurred to grandchildren in his care and began around the same age) and temporally proximate (began abuse another grand child within a year or so of the other moving out).

Third, not plain error to allow a clinical psychologist to testify about the "profiles of sexually abuse children" and that defendant's testimony was "consistent with this." Defendant argued this was inapporpriate "vouching" for a witness (an expert cannot testify that, in their opinion, the person is being telling the truth--at least not based solely on their statement, as this is an inappropriate bolstering of credibility).

While an expert cannot say that the testimony is "consistent with child abuse" or that, in the absence of physical evidence child abuse occurred, they can say the witness's statement "exhibits classic signs of a sexually abused child." Can anyone parse out the difference??

Fourth, defendant argues that the court inappopriately used Rule 412, the Rape Shield Statute, to keep out relevant evidence. Under 412, prior sexual behavior of the victim cannot be used unless it is shows the acts weren't committed by the defendant. The basic rule of this is you can't beat up a rape victim by pointing out she has had sex with other guys to show she consented to this sex act. It does not preclude prior inconsistent statements. The questions were:

  1. A witness said that the prior incident was committed by a "great grandfather." This answer was properly struck as non-responsive (not 412) (Q: Did Tina return to your home? A: She said she was sorry. She made a mistake. The great grandfather molested her.)
  2. A witness said Tina said his brother told her to make up the accusations to scare the defendant. This was impermissible hearsay (my brother told me she said...) and not 412.
  3. A witness said that, when Tina got pregnant, she didn't know if the baby was the defendant's or her boyfriends. Court ruled that 412 prohibited the statement. No error, especially since Tina had already said this on direct. Additional evidence would only have served to "humiliate" her.
State v. Louali. Mecklenburg County. Appeal of receiving stolen goods conviction

Evidence for the state: Undercover officer made a controlled sale at the "Global Electronic Center" of laptops to the defendant. and another man The officer said to the other man, within earshot of defendant, that he heard they would buy stolen property and that he ran into a business and took these laptops. The defendant offerred him $80.00. The exchange was made.

Held: Sufficient evidence for receiving stolen goods conviction, even though the officer never used the word "stole" or "stolen" to describe the laptops.

Under N.C. Gen. Stat. 14-71(b), "If a person knowingly receives or possesses property in the custody of a law enforcement agency that was explicitly represented to the person by an agent of the law enforcement agency or a person authorized to act on behalf of a law enforcement agency as stolen, the person is guilty." This requires more than implied knowledge, but rather an explicit representation that the property is stolen. However, the words "stolen" do not have to be used. Here, the officer saying "I heard you buy stolen goods" and that he "ran into a place and took the laptops" was sufficient for an explicit representation that the goods were stolen.

State v. Skipper. Sampson County. Defendant appeals habitual felon sentencing.

Defendant convicted of 3 felonies and senteced as a level V habitual felon to three 125M sentences, the top end of the presumptive range and ran all the sentences concurrently. The COA reversed one and remanded for resentencing.

On resentencing the court sentenced him to two 125M sentences and ran them concurrently.

Defendant argues that this was a violation of 15A-1335, which provides that the court, after winning an appeal, cannot sentence you harsher than it did the first time. Defendant essentially argues that he got 125 months for 3 charges (42M each), and now got 125 months for 2 charges (62M each) and this was a harsher sentence.

However, the COA found that he got 125M on each of the 3 charges, run concurrently the first time and this time got 125M on each charge, run concurrently, which is not a harsher sentence, but the same sentence. "Because defendant’s convictions were consolidated for judgment, this argument fails."

State v. Williams. Iredell County. Appeal of denial of motion to suppress.

Defendant stopped on suspected window tint violation. The ownership of the vehicle was questionable and the two persons inside had different stories (one said they were driving from Arizona to an unknown club, the other said from Kentucky to a club in Myrtle Beach). A check came back that all info was good.

After issuing a warning citation, the officer asked if there was any contraband in the car. He then asked to search and they said no. The officer requested a canine and, 10 minutes later, the canine walked around and alterted. The officer then searched the car.

Issue: did the officer have reasonable suspicion to prolong the stop for the canine search? Here, the totality of circumstances gave continued reasonable suspicion.

In Myles, after learning the license/registration checked, the cause for the original stop was at an end. The officer remained because the occupants were nervous and gave conflicting stories about when their rental car was due. The Court held that this was not reasonable suspicion to prolong the stop.

Here, the driver and defendant gave conflicting stories about their origin and destination, said they were cousins then said they just say that because they have a close relationship, one said the Defendant owned the truck and defendant said it was her friends, and the traffic was interstate. These combined factors give rise to reasonable suspicion to prolong the stop.

Judge McGee dissents.

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