Tuesday, December 27, 2011

NC COA Decisions, 12/20/2011

Reversals.

State v. Abbott.  New Hanover County. Appeal of larceny by employee conviction.

Trial court erred by allowing state to amend indictment by deleting the word "incorporated." The victim was an unincorporated association. This change was a substantial alteration of the indictment. This was not waivable. Vacate the judgment.

State v. Brown. Henderson County. Appeal of denial of motion to suppress evidence of impairment in a DWI stop. Defendant alleges stop was illegal.

Held: stop was illegal. Officer saw defendant's car pulled off on the side of the road. He heard some yelling and car doors slamming. Then, the car accelerated rapidly back onto the highway, but did not speed. This did not give reasonable suspicion to stop, based on his belief that they might be suspects in a robbery.

State v. Lynch. Chatham County. Appeal of RWDW and 2nd degree kidnapping.

Trial court erred in refusing to admit certified copies of the complaining witnesses criminal record to be used by the defendant to impeach the eye-witness. Rule 609(a) permitted defense to impeach the victim. This error was prejudicial, since defendant was impeded from impeaching the state's key witness, who had misrepresented his criminal record before the jury.

Admitting priors under 609(a) is not in the discretion of the trial court. New trial.

Judge Bryant dissents, finding no prejudice due to eye-witness admitting to these types of offenses on the stand.

State v. McDowell. Cleveland County. Appeal of breaking and entering into a motor vehicle.


To prove b&e of a motor vehicle (14-56), state must prove that there was a breaking and entering, without consent, into a motor vehilce, containing goods of value, with the intent to commit a larceny or felony within.


The state entered no evidence of anything of value in the car that was not affixed, thus insufficient evidence.


Other Cases.

State v. Clowers. Wake County. DWI appeal.

First, defendant challenges admission of intoxylzer prtintout and affidavit from analyst on hearsay and foundation grounds. Defense counsel only made a general objection and it was thus ineffective. Error is lost.

Second, sufficient evidence (readout of .15 BAC).

Third, no error in refusing to give an autonomism or unwillfulness instruction, where no evidence to support.

State v. Crawley. Durham County. 1st degree murder conviction.

First, defendant challenges admission of cell phone records without sufficient authentication. A custodian of records from the cell company produced the records and said they looked like his companies records, but he did not produce the actual CD with the records on them. Court found this sufficient to authenticate from circumstantial evidence.

Second, no error in allowing jury, in deliberations, to hear parts of tapes entered into evidence that were not played for them during the case. No error and any failure to the court by not providing an opportunity for the defense to re-open and enter rebuttal evidence was waived, as defense did not make such a request.

State v. Johnson. Currituck County. Appeal of cocaine trafficking conviction.

During a traffic stop, police find cocaine in the backseat of a vehicle. Three people are in the car; defendant is the only person in the back seat. Also found a rock in defendant's sock. Defendant made a run for it and, on the way, dropped another bag of cocaine. A co-defendant testified at trial that he and defendant were drug dealers and it was tehre drugs.

1) Sufficient evidence of constructive possession (items found in close proximity to defendant, other drugs found on defendant's person, and co-defendant testified they were selling it together).

2) No error in court failing to intervene ex mero motu when the prosecutor said:

"Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you that when you try the devil, you have to go to hell to get your witness. When you try a drug case, you have to get people who are involved in that world. Clearly the evidence shows that Robert Hall was in that world. He’s an admitted drug dealer and admitted drug user."

Court found that the prosecutor wasn't improperly calling the defendant a devil, just making an analogy.

3) Court refuses to rule on Harbison issue (attorney admitted guilt to RDO in closing) and leaves it for being raised in an  MAR.


State v. Mabry. Stanly County. Appeal of re-sentencing.

Court failed to find 4 mitigating factors. COA found they were not uncontradicted and manifestly credible, thus no error.


State v. Self. Buncombe County. Appeal of satellite-based monitoring order for life (SBM).

Held that Rules of Civil Procedure do not apply to SBM hearings, even though they are a civil regulatory scheme. Defendant had objected that there was no subject matter jurisdiction as no proper complaint was brought.


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