Monday, October 24, 2011

NC Court of Appeals Criminal Decisions, 10/4/2011


State v. Fox. Harnett County. Appeal of felony stalking conviction.

Defendant was convicted in 2009 for felony stalking for incidents occurring from 3/5/2009 to 4/7/2009. . From prison, he wrote a threatening letter to the victim and, after he got out, went to her house and threatened her some more. He was indicted for incidents occurring from 3/5/2009 to 2/8/2010 and convicting for stalking again. Appeals.

Held: conviction violates the double jeopardy clause.  The 2010 indicted offense includes conduct from the 2009 conviction which, on its own, is sufficient to prove violation. This subjected defendant to real jeopardy from a prior conviction. "Because the time periods of the “course of conduct” for both indictments overlapped, the same acts could result in a conviction under either indictment." Therefore, they were the same offense. Vacated.

Other Cases.

State v. Bowden. Mecklenburg County. State appeal of non-suit.

Defendant was charged of breaking and entering under an acting in concert theory. He was found on the scene and ran from police, after another man was found on the scene with items from a house in his hands and ran from the cops (he got away). After the jury returned a verdict of guilty, the judge dismissed on a motion notwithstanding the verdict. The state appeals.

The standard for granting a motion notwithstanding the verdict is if there is not substantial evidence for each element of the offense. "If the evidence is sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed."

Held that the court did not err in dismissing the charges.  "A defendant’s presence at the scene of a crime is not evidence of his guilt, even if the defendant is in sympathy with the criminal actor and makes no attempt to prevent the crime...In sum, the only evidence that could link Defendant to the break-in was (1) his presence in the back yard of the home just after the unknown man was seen carrying stolen property in the area, and (2) his flight from the crime scene when he saw the police officers."

State v. Collins. Craven County. Appeal of conviction for possession of marijuana and paraphernalia.'

First, the major piece of evidence in the case was the video from a controlled buy conducted by an informant, who was not available at trial. Defendant challenges that this was not properly authenticated. An officer testified that he rigged it up before and after. This is proper authentication.  The fact that persons on the video are unavailable is irrelevant, because the evidence was not offered for illustrative purposes, but rather for substantive purposes. If offered for illustrative purposes, a witness has to say, "this is a fair and accurate representation" of what something looks like. If offered for substantive purposes, all you have to establish is that it is what it says it is-- here, a video of a drug transaction.

Second, no plain error in officer saying that the defendant is the guy on the video. Here, officer had significant prior dealings with defendant and was in better position than the jury to give the opinion that it was the defendant on the video (thus meeting the test for a lay opinion: rationally based on perception and helpful to the jury).

State v. Garcia.  Wake County. Appeal of conviction for trafficking.

First, during sentencing, the jury requested to review a witness's trial testimony. The court has discretion to make this decision. After hearing the request, the following exchange occurred.  court stated

COURT: The jury has sent out a request for a copy of Officer Mendez’s testimony. I intend to call them in and tell them it is their duty to recall the testimony in this case, it is not prepared in a form that can be submitted to them at this time."

DEFENSE: Would you consider letting them know that it can be read to them.

COURT: I don’t intend to read it to them or have it read to them. It’s their duty to recall the evidence that they have heard. It’s not prepared in a form that can be submitted to them, so I’ll just tell them they need to recall the evidence.

COURT: (to Jury): [Y]ou have indicated in this note that you’re requesting a copy of Officer Mendez’[s] testimony...That is not prepared in a form that can be submitted to you. The Court Reporter takes it down, but she is taking it down for later typing everything, but it’s not done immediately, so it is not in a form that could be submitted to you. It is your duty to recall the evidence based on your recollection of the evidence that you have heard and the testimony that you have heard in this case.

Under State v. Ashe, if the court believes it is unable to provide the transcript to the jury, it is not exercising it's discretion, and a reversal is required. If the court is refusing to provide it by exercising it's discretion, then no error occurs.

COA held that, "While the trial court’s comments might have misled the jury about the availability of the transcript, it is the trial court’s understanding we consider here, not that of the jury. The court’s remarks to defense counsel indicate its awareness that the jury request could be granted by reading the transcript. Thus, the court was aware it had the ability to grant the jury request, but exercised its discretion in declining to do so."

Second, defendant challenges denial of motion to suppress. During a warranted search, while interviewing defendant's wife, the police found drugs. At that point, the defendant, admitted the drugs were his. He challenges, saying that the he was unlawfully in custody. The lower court ruled that he was lawfully detained ancillary to the execution of a warrant. "“An officer executing a warrant directing a search of premises not generally open to the public . . . may detain any person present for such time as is reasonably necessary to execute the warrant...Further, officers may use handcuffs to detain the occupants of a residence being searched and may question them, so long as the questioning does not extend the length of detention beyond that required to complete the search." Here, although defendant was cuffed, read his rights, and taken to another room for questioning, this does not make it an unlawful arrest, but rather a legal detention during execution of a search.

State v. Hester. Bladen County. Appeal of AWDWIKISI, first degree murder, and common law robbery.

First, no error in denial mistrial during capital sentencing hearing, when it was learned that a juror overheard the defendant's family disparaging the guilty verdict and discussed it with other jurors. Another juror talked with a spectator about the case and was removed. First, no evidence shows the misconduct affected guilt. It was only during sentencing deliberations. No prejudice as to sentencing, as jury returned a verdict of life without parole (only options were LWOP and death).

Second, no error in using short form indictment (as the courts have repeatedly ruled).

State v. Jackson. Stanly County. Appeal of several counts of sex offense.

The child testified by closed circuit television, as allowed under N.C.G.S. 15A-1225.1. Defendant argued that they didn't meet the statutory test and that it violated Crawford.

To allow closed-circuit child testimony, the court must find (1) "the child witness would suffer serious emotional distress, not by the open forum in general, but by testifying in the defendant's presence."; (2) “the child‖s ability to communicate with the trier of fact would be impaired.” At the evidentiary hearing, a psychologist testified that this test was met. Further, no confrontation violation, as the right to be in the physical presence of the witness must give way to protect child sex offense victims. Defendant had the ability to cross and confront the witness via video.

State v. Jones. Martin County. Appeal of AOF, misdemeanor breaking and entering, and assault on a child.

Basically, a guy broke into a house and made some odd statements to some children and assaulted one, while trying to make her touch his chest. At school, the children looked at the on-line sex offender registry with the principal at a few pictures then identified defendant as the perpetrator.

Defendant challenges the photo array and in-court ID (as plain error) on the theory that the initial array was unduly suggestive. "Identification evidence violates a defendant’s due process right where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification."

In making such a determination, the courts look at five factors to determine "likelihood of irreparable misidentification":

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.”

And two more on whether the pretrial ID was suggestive:

(1) “Whether the accused is somehow distinguished from others . . . in a set of photographs”; and
(2) “Whether the witness is given some extraneous information by the police which leads her to identify the accused as the perpetrator of the offense.”

Held: First, principal was not acting as an agent of the state, because he was not acting under his public authority--principals do not engage in the competitive enterprise of ferreting out crime. "Rather, Principal Hart’s actions were more akin to that of a parent, friend, or other concerned citizen offering to help..." Even if the ID was impermissively suggestive, that doesn't rise to a 14th violation here because there is no state action. Second, even if it did, this procedure was not unnecessarily suggestive.

Steelman concurs separately. Believes that they shouldn't have even heard the constitutional issue, despite the fact that it involves the admissibility of evidence.

State v. Jordan.  Caldwell County. Appeal of 1st degree murder conviction.

Major issue is the defense motion to suppress defendant's confession. 

Defendant told police: "I need my rights. I ain’t signing my away right,"... "I know but that ain’t right. Ya’ll ain’t even wanting to question me man without a lawyer present. My people’s already getting me a lawyer cuz." He later signed a waiver and confessed.

Held: These statements were too ambiguous to constitute an assertion of the right to counsel.

Second, the video tape of the interrogation was of poor quality. The jury was given a "transcript" and instructed that it was only for corroboration and their memory of the tape should serve as reference for evaluating the transcript. This might have been error, since the tape was of poor quality, but in any event it was harmless, as other witnesses said that defendant said he was going to kill the victim, that he said he did kill the victim, and eye-witnesses said they saw him kill the victim.

State v. McDonald. Cabarrus County. Appeal of cocaine possession conviction.

Defendant challenges admission of lab report on grounds that the testing was not conducted by an accredited lab and the procedures were not sufficiently reliable. This was not plain error. Expert had an adequate background. The lack of testimony on accreditation or approval by the SBI of procedures used, alone, did not make 702(a) unreliable.

Note: Under the new Rule 702(a), expert opinions can come in if the expert is qualified and the testimony is supported by reliable principles and methods, reliably applied to the facts--effective 10/1/2011 and not relevant to this case.

State v. Sims. Buncombe County. Appeal of indecent liberties conviction.

At a target, defendant went up to a girl three times: (1) he crouched down and looked at her legs, (2) fell into her and wrapped his hands around her belt area, then apologized, and (3) knelt down 6-8 inches from her legs. Other testimony came in of other people at target whose legs defendant had commented about or asked to touch. Defendant admitted that he had an obsession with women's legs.

Held: Sufficient evidence for an indecent liberties conviction, including element that touching was for sexual gratification/desire.

State v. Teague. Randolph County. Appeal of two counts of attempted 1st degree murder, larceny of a motor vehicle and RWDW.

 First, sufficient evidence for attempted murder. Requires proof of "(1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing.”

Defendant bought some binoculars, went to victim's house, laid in wait watching them,  when they went to bed he broke into their house, and then cut them both in the neck multiple times while they slept. This is sufficient evidence of premeditation/deliberation and specific intent to kill.

Second, no error in state's closing arguments. State's argument was that "There are three kinds of people in the world: there are sheep, there are sheepdogs, and there are predators...Predators are the ones who come in the middle of the night and they slit your throats and they try to kill you because they want what they want, and they want what you have, and they’re upset because life hasn’t treated them fairly. But that’s no excuse for them to be a predator. Sheepdogs. Those are the people that protect the sheep. Those are the people who are willing to stand up and do what’s right. They serve in law enforcement, they are firefighters, they are the people who protect our communities and our citizens from people like Charles Teague. Ladies and gentlemen, each and every one of you, for the purposes of being here today, is now a sheepdog."

Defendant argues this is an improper argument for calling on jury to "protect the community" and name-calling. Not plain error.

"We ... reiterate that comparisons between criminal defendants and animals are strongly disfavored but, as the State has a wide latitude in jury argument, hold that the State’s closing argument did not rise to the level of being so grossly improper as to require the trial court to intervene ex mero motu.”

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