Monday, December 12, 2011

NC Court of Appeals, Criminal Decisions (Dec. 6, 2011)

Reversals.

State v. Gregory Brown.  Forgery appeal.

Defendant presented a check for payment, that was a forgery. He told police that a "light-skinned black dude" named J gave m the check for $655 and said I could keep $50 if I cashed it for him.

Held: Insufficient evidence. Despite the check having some irregularities on the face and the other circumstances, insufficient evidence of knowledge and intent by defendant to cash a forged check.

State v. Gillikin.  Appeal of 2nd rape, false imprisonment, and misdemeanor larceny conviction.

During deliberations, the jury sent out a note after 4 hours that "We cannot reach a unanimous decision on 4 of the 5 verdicts." Judge instructed the jury that he read their note that they couldn't reach a unanimous verdict and "in a case such as this it's not unusual." The court then "reminded" the jury that "it is your duty to find the truth in this case and reach a verdict." Instructed them to go back and "deliberate until you have a unanimous verdict." 90 minutes later, they came back guilty.

Held: This charge can reasonably be construed by a juror to surrender his well-founded convictions. It improperly coerced a verdict. Prejudicial. New trial.

Also held that prosecutor violated rules of professional conduct in it's closing, by name calling, expressing opinion the defendant was a liar. "The entire tenor of the prosecutor's argument was undignified and solely intended to inflame the jury." Court noted that, had the trial court not intervened ex mero motu (as it did), this would be cause for error.

Other Cases. 

State v. Myron Britt. Appeal of 1st degree murder conviction. Click here to see our post from the trial.

Defendant's wife was shot and killed with a single .25 bullet while staying the night with a woman she was caring for. There were no signs of forced entry or theft. Evidence against the husband was that he had borrowed a .25 pistol from a relative and it was now missing, that a .25 round was found in his car, and that a bullet that had previously been fired from that .25 (into a baseboard by accidental discharge) matched the bullet in his wife. State's theory was that the murder was to collect insurance money and pay off debts.

Defendant put on evidence of an alibi (his kid was home and never heard him leave that night), ballistic experts that testified the bullet didn't match, and evidence of a happy marriage and ability to pay debts, using his business income and his wife's teaching income.

First, defendant argues that State's ballistic evidence should not have been admitted as unreliable under 702. First, held that forensic toolmark identification is sufficiently reliable, has been admissible for decades, and defendant did not offer any "new" evidence as to why it should not be admissible. Particular evidence was qualified by training and experience.

Second, defendant objects to evidence of false information in a 5 year old mortgage application should not have been admitted under 404 and 403. Court found it relevant to motive, as state's theory was financial hardship motivated the killing.

State v. Oliver. Appeal of conviction for possession of stolen vehicle.

Car stolen at the night before. At 1:00pm the next day, defendant pulled over driving the car, with two passengers. Defendant had a valet key and said the car belonged to "Joe." Defendant later said he rented the car near Urban Ministries from a crack head. Defendant testified and said he didn't know it was stolen and planned to bring it back at 7:00pm, when he was done renting it. Defendant testified that crack-heads often rent their cars out in the area to buy crack.

First, no error in failing to instruct on unnauthorized use, which the NC SC has ruled is not a lesser included.

Second, sufficient evidence of knowledge of stolenness, given that it was rented for a day by a crack head and, in his statement to police, he said he "figured the car was stolen."

State v. Sprouse.  Appeal of statutory rape (5 counts), sex offense (4 counts), indecent liberties (9 counts) and sexual activity by a substitute parent (9 counts).


Substantial evidence presented of all counts in the form of the victim (13 at time of offense) testifying to all the acts occurring. The slightest penetration is all that is necessary to prove intercourse.


No abuse of discretion in the judge denying his motion to sequester witnesses, despite one instance of a witness conforming her testimony to another witness (about the length of stay in a hotel).


Last, trial court committed plain error in allowing DSS social worker to testify that they "substantiated" sex abuse against A.B. by defendant. This is classic impermissible vouching. However, no objection, so only get relief if so prejudicial that it results in fundamental error, and court finds no such prejudice here.

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