Monday, November 21, 2011

NC Court of Appeals, Criminal Decisions, November 15th

State v. Otto. Appeal of DWI conviction. Defendant appeals on grounds that the stop was illegal.

Officer stopped defendant leaving a Duck's Unlimited Banquet, because he had "heard there would be alcohol there." Defendant did not violate any traffic laws, but was weaving within her own lane (she did not cross any lines). Held: No reasonable suspicion for the stop. Judgment vacated and all evidence suppressed.

Judge Ervin dissents.

State v. Patel.  Appeal of 1st degree murder conviction.

Defendant and his wife were going through a divorce. His wife had told others of his abuse and threats to her and her fears that he was going to kill her.

On the day of her murder, she told people she was going to pick up items from the defendant's house. That morning, someone else called the defendant and he insisted they not come over. Defendant was shortly thereafter seen buying gas and a gas can. He called and cancel a scheduled tennis match. A few hours later, police responded to a brush fire and found the victim's body doused in gasoline. Defendant's alibi was that he was at South Point Mall eating at Sbarros, although he was not on the videos there and there is no Sbarro's in the mall. He  told police he bought the gas for a distressed motorist. He later told a detective, ""it was his wife's fate to die," and "if I go to jail, I go to jail, that would be my fate."

First, held this was sufficient evidence.

State v. Surrett. Appeal of convictions for second degree burglary, conspiracy, felony possession of stolen goods, felony possession of stolen firearm, and accessory after the fact to burglary.

Defendant and some friends, while high on crack, broke into a trailer and stole a bunch of stuff. Defendant may not have gone inside.

Judge instructed that the jury could convict on a theory of accessory before the fact, aiding and
abetting, or acting in concert. Defendant argues that this instruction could have resulted in a non-unanimous verdict, as both aiding and abetting and acting in concert required him to go inside, but not accessory. This was not a problem as defendant could not be convicted on all three and his presence was only relevant to the way the state proved the charge, not the resultant conviction.

Second, not plain error to fail to instruct on voluntary intoxication, even though the defendant was drunk.

Third, error to convict as a principle and for accessory after the fact. That count is vacated.

Fourth, court erred in sentencing on two separate possession of firearm charges. If both stolen at the same time and possessed at the same time, you can't get a different count for each gun.

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