Thursday, October 27, 2011

NC Court of Appeals Criminal Decisions

Reversals.

State v. Surratt. Forsyth County. Appeal of felony child abuse by sexual act, indecent liberties, and first degree sex offense.

At a prior child welfare hearing, a judge ruled that the children "were not sexually abused." The state made a motion in limine to exclude any reference to this hearing, to which the defendant did not object. At trial, a SS social worker testified that they investigated allegations of sexual abuse and removed the children from the home.

Held: It was ineffective for counsel to allow this testimony in without making the jury aware that the removal was based solely on neglect, not sexual abuse. This was not harmless, as the case rested solely on the child's testimony and there was no physical evidence of abuse. Further, testimony that DSS had "substantiated" the allegations prejudicially and inappropriately bolstered her credibility.

New Trial.

State v. Sweat. Buncombe County. Appeal of first degree sex offense and sex offense with a child.


First, here is the defendant's handwritten confession.

"Brickyard Road. She pulled out my p-e-n-d-s and sucked it. I said ―no but she wanted to t-y-e it. She l-e-n-k-s it. I had s-a-i-n-d ―no, but she want to, so she did it. For s-u-o-c-d. That happened two times. She put my p-l-a-n-s in her butt. B-e-a-c-k part we play on the bed and [Tammy] put her hand down in my pants, pull it out and t-y-e it or can I s-a-n-d, but she want to. I know she it out again. I s-a-i, ―This is not r-in-t' to her. She s-u-i-n-d things. She tried to put it in her butt that day[.]"

Defendant argues that there was insufficient evidence of sex offense with a child--the offense was based on fellatio. Defendant argues under corpus delicti, the only evidence of this offense is his confession and thus it must be dismissed. In non-capital crimes, you can convict on confession alone "if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime." Here, the victim did not deny fellatio and evidence that she told a DSS worker this happened came in (even though it only came in as corroboration, and didn't corroborate the in-court testimony...) Further, defendant had ample opportunity to commit these crimes.

Second, the jury, however, was improperly charged on the count of sex offense with a child. Defendant hasd four counts of sex offense. The court instructed on all four that they could find defendant guilty if they found he engaged in anal sex and/or fellatio with the child. There was evidence of mulitple instances of anal intercourse, but only of two instances of fellatio. As such, it was error and misleading to instruct on fellation on all four counts. New trial on the two counts of sex offense with a child.

Other Cases. 

State v. Holloway. Wake County. Appeal of habitual misdemeanor assault and habitual felon conviction. Defendant convicted for assault on a female. He had prior assault convictions, so was convicted for the separate offense of habitual misdemeanor assualt, a class H felony. He was then sentenced as a habitual felon, due to his three prior felony convictions, as a class C felon.

The upshot: his AOF, punishable by a maximum of 150 days, was converted to a C felony and he was sentenced to 108 months (9 years).

First, the habitual misdemeanor statute reads: "“[a] conviction under this section shall not be used as
a prior conviction for any other habitual offense statute." Defendant argues that it thus couldn't be used for a habitual felon--that the legislature couldn't have meant to turn a misdemeanor (simple assault on a female) into a class C felony. Not so, says the COA. Because habitual felony is a sentencing mechanism, not a seperate offense, it is not a "habitual offense statute."

"While defendant’s arguments are well taken, we note that the primary purpose of recidivist statutes such as these are “to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.”

State v. Pierce. New Hanover County. Appeal of possession of firearm by felon (PFF), 2nd degree murder, flee to elude arrest resulting in death, and possession of marijuana with intent to sell.

During a traffic stop, defendant fled and a high speed chase ensued. During the chase, an officer who was on the radio but not in direct pursuit swerved to avoid debris on the road (unrelated to the chase), lost control, went over the median, and died when he crashed into a tree. Once they caught the defendant, they charged him with drugs and a gun found in the car and second degree murder.

First, defendant challenges the Second Degree Murder conviction. The elements of 2nd degree are

1. defendant killed the victim;
2. defendant acted intentionally and with malice; and
3. defendant’s act was a proximate cause of the victim’s death.

First, the "very act of fleeing from the police certainly constitutes malice." Here, he fled, sped, ran lights, etc, all with knowledge that injury or death could result and manifesting depravity of mind and disregard of human life.

Second, even though the officer was not in direct pursuit and was, in fact, miles away, "the harm that befell him – was [not] so far beyond the circumference of Pierce’s reckless actions as to absolve Pierce of liability for Officer Matthews’ death."

Third, no error in refusing to allow the defendant to put on evidence and argue that "Officer Matthews was negligent in speeding to the pursuit and, therefore, was the cause of his own death," because contributory negligence has no place in the law of crimes.

Second, no error in the convictions for PFF.

Two guns were found: one on the highway and one during a search of defendant's house.

In the house, it was found in his closet, alongside paychecks with his name on it and other papers with his name on it. Further, his wife said he was "holding it for his brother." Sufficient evidence to prove constructive possession.

The other one was found on the highway. There were 3 people in the. Insufficient evidence to show that defendant, and not another occupant, owned that gun (or that it even came from the car). Vacated.

Third, defendant argues that a 1994 robbery was improper 404(b) evidence. In that case, defendant fled on foot and a co-defendant was shot and killed by police. It was relevant to knowledge because it showed prior evidence of flight and the dangers inherent in flight.

State v. Ross. Rowan County. Appeal of two counts of attempted first degree murder, two counts AWDWIKISI,  one count attempted RWDW, and one count of AOF.

First, defendant argues that the confrontation clause was violated when, at trial, one of the victim's testimony at a probable cause hearing and prior statements to law enforcement was admitted. 6th amendment not violated where declarant unavailable when defendant "had a prior opportunity to cross-examine the declarant."

"Defendant contends, however, that he had no meaningful opportunity to cross-examine Ms. Besies at the probable cause hearing because the various charges had not yet been joined, defendant's lead trial counsel had not yet been appointed, and his counsel at that time had not yet had an opportunity to review all the discovery... [O]ur courts have never held that discovery must be complete for a cross-examination opportunity to be adequate. Here, defendant was represented by counsel at the probable cause hearing (who was one of his trial counsel), he had the same motive to cross-examine Ms. Besies as at trial, and his counsel did in fact cross-examine Ms. Besies."

Statements to the law enforcement officers were properly admitted for corroboration, thus not affecting confrontation rights.

Second, it was error for the judge to submit aggravating circumstances to the jury not included in the indictment (even though notice was given to the defendant of the state's intent to submit them). Thus, trial erred in sentencing as aggravated. Remanded for resentencing.

State v. Watlington. Rockingham County.  Appeal of conviction for habitual impaired driving and being a habitual felon.

Defendant moved to proceed pro se during the habitual felon sentencing hearing. Defendant argues that the court erred in allowing him toe waive counsel without conducting a proper inquiry under 15A-1242. Court failed to conduct, so new trial on habitual felon. The fact that defendant clearly indicated he wished to proceed pro se and was familiar with the court system does not change the duty to comply with the inquiry.











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