Thursday, September 8, 2011

9/26 NC Court of Appeals Criminal Decisions

State v. Howard. Randolph County. Appeal of robbery with a dangerous weapon (RWDW).

At 12:50a, a woman was robbed at gunpoint of a laptop, camcorder, and wallet. At 4:00am, the victim's credit card was used to buy things at Wal-Mart. At 4:30a. 11 miles away, a break-in occurred at Daddy Rabbit's gun store. A concerned citizen followed the car of the gunstore break-in to a home and called police. Police conducted a consent search and found several bags of Walmart merchandise, bloody clothing, and property from both the robbery and the breakin. The Wal-mart purchases were made at 4:00am.

Defendant indicted for RWDW.

First, defendant challenges as plain error under 404(b) and 403 evidence of the break-in at Daddy Rabbit's store. This was properly admitted as "course of conduct" info, as necessary to explain the evidence and tell the complete story to the jury.

Second, was not plain error to admit lay opinion testimony for the officer to testify that "(1) that items located at Ebert’s apartment were purchased with a stolen credit card and that it appeared someone had attempted to hide them; (2) that subtotals on a Wal-Mart receipt indicated that the credit card was stolen because defendant would not have known how much money was available on the card and would have purchased a few items at a time to be sure the card would clear; (3) that there was blood on clothing found in Ebert’s apartment and in the Isuzu Rodeo automobile when no lab tests confirmed its presence; and (4) the broken wood panel piece found in the Isuzu Rodeo automobile matched the piece broken to gain entry to Daddy Rabbit’s “like a ‘puzzle piece.’”

Third, no error in allowing the detective to identify the defendant in the survellance video of Walmart. "The current national trend is to allow lay opinion testimony identifying the person, usually a criminal defendant, in a photograph or videotape where such testimony is based on the perceptions and knowledge of the witness, the testimony would be helpful to the jury in the jury’s fact-finding function rather than invasive of that function, and the helpfulness outweighs the possible prejudice to the defendant from admission of the testimony."

Fourth, no plain error in admitting the Walmart receipts and video under authentication or best evidence rules. "The trial court did not commit plain error in admitting the social security card, Wal-Mart photos, and receipts into evidence without full authentication and explanation as t whether or not the “best evidence rule” was complied with, because had the defendant objected to the admission of these pieces of evidence the State could have provided the necessary foundation and documentation relating to the “best evidence rule.”

State v. Jackson. Orange County. Appeal by two co-defendants for RWDW.

First, argue that judge erred in denying their motion to discharge the jury venire due to the race disproportionately underrepresenting minoriteies. To win this claim, you have to make a prima facie showing of racial systemic exclusion by showing:

(1) that the group alleged to be excluded is a “distinctive” group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in thejury-selection process.

There were 3 minorities in a venire of 60. Defense did not make any showing of the racial make-up of the county. As such, there was no showing that this venire was not fair and reasonable in relation to the number of such persons in the community.

State v. McDowell. Ashe County. Appeal of first degree murder conviction.

Defendant, 21, went on a trip to the mountains with a friend, to drink, play video games and shoot guns. Defendant drunkenly shot and killed his friend and buried him in some leaves. The police learned about the case when the defendant called his father and said he shot the victim. The victim had a .20 BAC. He was shot 41 times, inside the cabin. Defendant alleged he was drunk and shot in self defense. He also presented expert testimony about PTSD and cognitive impairment, as evidence of imperfect self-defense and diminished capacity.

First, no error in trial court refusal to instruct on diminished capacity. Defendant alleged he was entitled due to the PTSD, alcohol, and cognitive impairment evidence. However, no evidence that "cast any doubt on Defendant’s ability to premeditate, deliberate, or form the specific intent to kill necessary for guilt of first degree murder on the basis of malice, premeditation, and deliberation... the crucial inquiry that must be undertaken in connection with a request for a diminished capacity instruction is not the extent to which the defendant has offered any evidence of mental impairment; instead, the crucial issue is whether there is any evidence tending to show the effect of his condition upon his ability to premeditate, deliberate, and form a specific intent to kill." Defendant's experts testified and in reports stated that it was unlikely he lacked specific intent, given the number of shots.

Second, no error in officer testifying that he observed a "hair" on a wall of the house with tissue attached to it. Defendant objected because the evidence was not collected and is unavailable for testing. Held that this is not a valid basis for exclusions.

Third, no error in SBI agent testifying about the path of a bullet, under 703, based on the shape of holes. The fact that the agent testified from a picture, rather than viewing the actual scene, does not create error.

State v. Oates. Sampson County. State appeal of grant of motion to suppress.

Held that state failed to give proper notice of appeal. The trial court made oral ruling on motion on 12/14. State gave written notice. Then, on 3/22, the court issued a written decision.

To give proper notice in this circumstances, the state must do so orally at the time or in writing 14 days after "entry of judgment," which here means the written order. Dismissed.

State v. Richmond. Person County. Appeal of denial of motion to suppress.

During execution of a search warrant in a residence, defendant was ordered to the ground, cuffed, searched and drugs were found.

During execution of a search warrant, officers can detain anyone present on the scene and search persons if the items named in the warrant are not found on the property and could be concealed on one's person, NCGS 15A-256. Also, during detention at a warrant execution, an officer may pat down a defendant if he reasonably believes weapons may be present and are needed for his safety.

Here, there was reasonable suspicion, under the logic of, where there's drugs, there's guns.

Pat down was legal and officer immediately recognized it as drugs, thus could seize under "plain feel."

State v. Williams. Johnston County. Appeal of two counts of sex offense in a parental role and two counts of incest.

(1) Appeal on Miranda gounds. A conflict exists as to whether the defendant was in custody, so remanded for findings on that issue.

(2) Appeal on double jeapardy grounds. Unfortunately, not preserved.

Judge Bryant dissents on issue of whether there is a material conflict.

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