Monday, October 3, 2011

NC Court of Appeals Criminal Decisions (9.20.2011)

State v. Burgess. Yadkin County.

Defendant convicted for kidnapping and crime against nature. The court, in sentencing, required him to enroll as a sex offender. Held: neither kidnapping, nor crime against nature is a "reportable conviction" under NCGS 14-208.6.

State v. Cortez. Johnston County. Case on sureties and bond forfeiture. Held that Clerk failed to perfect the forfeiture.

State v. James. New Hanover County. Appeal of cocaine possession conviction.

Defendant arrested for possession of cocaine. At the police statement, he ate the suspected cocaine. Officers testified at trial that the substance was cocaine based on visual inspection and based on a presumptive NIK test. Normally, the substance would be sent off to the lab for confirmatory testing. During processing, "Defendant asked the magistrate, “How are they charging me with the crack, when I ate it? Or possessing the crack when I ate it?”

First, while generally it violates 702 (as insufficiently reliable) for officers to testify based on NIK testing or visual inspection about the substance of a drug, the defendant forfeited his right to keep that evidence out by eating the suspected cocaine.  "Under the unique circumstances of this case, however, we conclude Defendant forfeited his right to challenge the admission of this otherwise inadmissible testimony."

State v. Trogdon. Randolph County. Appeal of 2nd degree murder.

1) The death certificate, autopsy report, and expert witness described the death as a "homicide." Defendant challenges this as an inappropriate opinion on an ultimate issue. This was not objectionable and merely was an opinion based on evidence that the death was not an accident, a perfectly legitimate opinion.

While an expert cannot "testify regarding specific legal terms of art including whether a defendant deliberated before committing a crime. Additionally, a medical expert may not testify as to the "proximate cause" of a victim's death," here "homicide" simply meant, not an accident, not an opinion about whether it was a technical "homicide" in the sense of 2nd degree murder.

2) An expert testified that, in her opinion, bite marks made on the victim's arm were made by the defendant.

Bite mark identification is the epitomy of junk science. As the National Academy of Sciences reported in its 2009 report "The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others."

Nonetheless, this was not plain error. 

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