Monday, December 31, 2012

NC Court of Appeals Criminal Decisions, Dec. 31, 2012

Interesting Cases

State v. Daniels. Dare County.

Judge Wayland J. Sermons, Jr. ruled that 14-208.18(a)(2) and (a)(3) are unconstitutionally vague and overbroad. These provide that a sex offender cannot be:

(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.

(3)  At any place where minors gather for regularly scheduled educational, recreational, or social programs.

Defendant went with his wife and son to his son's Tee Ball game at the Lion's Club Center, which is used for community events and then another Park, to practice softball with his daughter. A cop saw him and had him arrested. Judge Sermon dismissed the charges, declaring the law vague.

The State appealed.

First, the court had no jurisdiction to rule (2) to be vague, as defendant was indicted on (3).

Second,  defendant did not have standing to bring a facial challenge, only an as-applied challenge.

Third, section (a)(3) of the statute is unconstitutionally vague, as it fails to give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited.

State v. Grainger. Randolph County. Appeal of 1st degree murder conviction.

Held: Court erred in failing to instruct on the lessor offense of accessory before the fact to first degree murder. This is a lesser offense because it is only punishable as a B2, in murder cases--even if the case is not tried capitally (language in the statute is "capital felony").

Facts in the case were simply that defendant dropped off the shooter to kill his father.

Other Cases

State v. Comeaux. Buncombe County. Appeal of four counts of indecent liberties.

1st, defendant challenges victim testifying in closed courtroom under 6th Amendment right to a public trial.

A judge may close the courtroom in sex offense cases during the victim's testimony by following the requirements of State v. Waller, that:

(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;

(2) the closure must be no broader than necessary to protect that interest;

(3) the trial court must consider reasonable alternatives to closing the proceeding; and

(4) the trial court must make findings adequate to support the closure.

Here, the court made adequate findings to close the court.

2nd, indictments were not defective, even though they did not give a specific date for a specific sexual act.

State v. Oates. State appeal of court grant of motion to suppress.

The trial court found that the affidavit that was used to get a search warrant was insufficient to establish probable cause.

The affidavit was based on an anonymous informant's tip. However, the tipper gave specific information that was corroborated by the police. This was enough.

Governor Perdue Pardons Wilmington 10

Today, Governor Perdue pardoned the Wilmington 10 on her way out of the door.

She granted them a pardon of innocence.  Her words are below:

"In 1980, a federal appeals court overturned the convictions in a written decision that highlighted the gross improprieties that occurred during the trial. The federal court determined as a matter of law that numerous instances of prosecutorial misconduct and other constitutional violations took place. Among other things, the court ruled that with regard to the testimony of the prosecution’s key witness – upon whose credibility the case depended entirely -- “the conclusion is inescapable that [he] perjured himself” and that “this fact was bound to be known to the prosecutor . . .” The court also declared that it was undisputed that key documents had repeatedly been withheld from defense lawyers. It also found numerous errors by the trial judge that had the effect of unconstitutionally prejudicing the defendants’ ability to receive a fair trial.

Since the trial ended, the prosecution’s key witness and two supporting witnesses all independently recanted their testimony incriminating the defendants. Furthermore, last month, new evidence was made available to me in the form of handwritten notes from the prosecutor who picked the jury at trial. These notes show with disturbing clarity the dominant role that racism played in jury selection. The notes reveal that certain white jurors believed to be Ku Klux Klan members were described by the prosecutor as “good” and that at least one African American juror was noted to be an “Uncle Tom type.”

This conduct is disgraceful. It is utterly incompatible with basic notions of fairness and with every ideal that North Carolina holds dear. The legitimacy of our criminal justice system hinges on it operating in a fair and equitable manner with justice being dispensed based on innocence or guilt – not based on race or other forms of prejudice. That did not happen here. Instead, these convictions were tainted by naked racism and represent an ugly stain on North Carolina’s criminal justice system that cannot be allowed to stand any longer.

Justice demands that this stain finally be removed. The process in which this case was tried was fundamentally flawed. Therefore, as Governor, I am issuing these pardons of innocence to right this longstanding wrong.”

Friday, December 21, 2012

NC Supreme Court Decisions, December 14, 2012

State v. Heien. Review of COA finding that a traffic stop was illegal.

The Court of Appeal unanimously ruled that the there was no reasonable basis for a traffic stop--finding that one broken brake light does not give rise to reasonable suspicion (during the stop, the officer asked for permission to search and found drugs).

The COA relied on this language, "section 20-129(d) required that “[e]very motor
vehicle . . . have all originally equipped rear lamps or the equivalent in good
working order, which lamps shall exhibit a red light plainly visible under normal
atmospheric conditions from a distance of 500 feet to the rear of such vehicle.” to show that "a red light" was adequate, not requiring two.

Justice Newby and Supremes reversed holding that an officer's mistake of law will not invalidate an otherwise lawful stop, even if no law has been violated. The officer reasonably believed that the law was violated, due to the broken lamp. The fact that the law turned out to be otherwise doesn't matter.

Justice Hudson, the Chief, and Timmons-Goodson dissented.


State v. Burrow. Vacate and remand.

Allows state to amend the record on appeal to show defense counsel was notified of intent to introduce a crime lab report and vacates the decisions below (lack of notice was basis for decision below).

State v. Lindsey. Per curiam reversal, for reasons in dissent.

COA Decision here: (description below from old Blogpost).

 Officer tried to stop a "bluish" van with the first letter W in it's license plate. The van got away. Later, a  "greenish-bluish" van crashed into a light pole near a windows. A black male with a "plaidish-type" shirt ran away. Police found a blunt wrapper in the van and a bag with some cocaine and marijuana in it in a trash can in the Wendy's parking lot. Defendant was apprehended.

All charges should have been dismissed for insufficient evidence.

1) Felony speeding to elude arrest: no evidence presented that this was the same van. Bluish van and one letter of the license plate. That's it. Insufficient evidence.

2) Possession of drugs: insufficient evidence for constructive possession. Items found in a trash can that weren't under defendant's exclusive control. Must have other incriminating factors to infer his possession. The fact that defendant wrecked a car in the vicinity, had blunt papers in the car, and ran are not enough. Insufficient evidence.

Steelman dissents on flee/elude and possession of marijuana; concurs on possession of cocaine.

State v. Rico. Per curium reversal of COA decision based on dissent.

Ordering that the entire plea must be set aside where there was a material mistake of law in the agreement. See COA decision/dissent here.

NC Court of Appeals Criminal Decisions, December 18, 2012

State v. Canty.  Sampson County. Appeal of firearm by felon conviction. -- Nathaniel Canty

Defendant's wife was driving 73 in a 70. Defendant was in the passenger seat. Saw cops and reduced speed to 65. Police followed them and the car crossed the white fog line. The police then pulled him for "unsafe movement." Wife taken out of the car and put in patrol car so they could write a warning ticket. Interviewed defendant about where he was going and became suspicious due to lack of eye contact, evasion, and nervousness. Gave them the ticket, then asked to search. Wife consented and they found a revolver and a rifle in a suitcase. [Classic pre-textual stop].

Defendant confessed.

First, defendant's lawyer didn't challenge the stop (although there was clearly good issues for lack of reasonable suspicion and prolongment), so no plain error.

Second, held was IAC for failure to file such a motion. Court finds the search was illegal and a motion would likely have succeeded. No strategic advantage to not filing.

New trial.

State v. Elmore. Catawba County. Appeal of 2 counts involuntary manslaughter. -- Matthew Elmore.

Defendant, drunk, ran a red light and killed two people. Jury convicted of involuntary manslaughter, but found not guilty of felony death by vehicle.

N.C.G.A 20-141.4(c) prevents double prosecutions for manslaughter and death by vehicle: "No person who has been placed in jeopardy upon a charge of death by vehicle may be prosecuted for the
offense of manslaughter arising out of the same death; and no person who has been placed in jeopardy upon a charge of manslaughter may be prosecuted for death by vehicle arising out of the same death."

HELD: While no one can be sentenced for both, no problem with submitting both theories of death to the jury.

State v. Franklin. Mecklenburg County.  Appeal of trafficking conviction. -- Malik Franklin.

Defendant was a passenger in a car during a stop for a seat belt violation. Trial court found that consent was given for search (which was disputed).

Held: Search: Defendant had no standing to challenge the search of the car, because he was a passenger. Stop: was valid and no evidence of pre-text. Was not unlawfully prolonged, as total duration was only 10 minutes.

Dissent by Elmore: Stop was pretextual and unconstitutional.

State v. Hester.  Mecklenburg County. Appeal of felony larceny conviction and habitual felon. -- Darryl Hester.

Defendant stole hair extensions from a beauty supply store. Sentenced to 7 years.

The state played a poor quality copy of the surveillance video at trial, while victims testified that the original video was of higher quality and clearly showed defendant committing the crime (which the grainy one did not). Defendant's attorney did not object.

Defendant testified. Said it was another employee that stole the stuff, but defendant had paid $900 in restitution anyway.

First, no plain error in allowing the victims to describe what the good quality video showed.

Second, IAC dismissed without prejudice.

State v. Randolph.  Appeal of 2d sex offense conviction. -- Henry Randolph.

Victim, 16 year old, reported that defendant (a father victim) touched her inappropriately.

Defendant was interrogated. He did not sign a Miranda waiver, rather wrote "no" on form asking if  he understood he had been charged (arrest warrants had been sworn) and had "not yet" been appointed counsel. The investigator took notes, which defendant refused to sign, saying she had gotten things wrong and then refused to answer more questions. Then the detective kept asking questions. The trial court suppressed statements made after this point, but not before defendant asserted his right to silence.

First, no error in admitting the statement through the officer. While her notes were not a verbatim statement or signed by the defendant, there was no error in allowing her to testify that he made that statement and that those were her notes of it. While you cannot admit a written statement that is not signed by a defendant and call it the defendant's written statement, you can testify to what a defendant said during a legal interrogation.

Second, no plain error in submitting 404(b) evidence of other statements that defendant had molested others.

State v. Redman.  Currituck County. Appeal of B&E motor vehicle, larceny, and injury to personal property. -- Robert Redman.

Defendant, drunk, took victim's car without permission, then left it in a field, doing damage to it.

First, sufficient evidence of felony larceny. Must show van worth more than $1,000.  The victim testified that the van was worth $30,000. This is sufficient evidence.

Second, no fatal variance. The indictment said he caused $200 of damage, but a witness said it was $5,000. Fatal variance was not raised, so it is waived.

State v. Royster. Mecklenburg County. Appeal of felony carrying a concealed weapon/motion to suppress. -- Ellis Royster, Jr.

On Halloween, defendant stopped for speeding. During the stop, the officer smelled marijuana, searched the car, frisked the defendant, and discovered defendant was carrying a weapon and arrested him.

Held: legal stop.

Saturday, December 8, 2012

NC Court of Appeals Criminal Decisions, December 4, 2012

State v. Boyett. New Hanover County. Appeal of multiple counts of rape, sex offense, and incest.

Defendant, the victim's grandfather, had had sex with her many times since her 18th birthday. The victim was overheard discussing this on a call with defendant and told her parents her grandfather had forced her to engage in numerous sex acts.

First, the trial court erred in failing to instruct on attempted second degree rape and attempted incest (on some counts), because the victim said, "Defendant “tr[ied] to get his penis to go inside my vagina.” When asked how far Defendant was able to get his penis inside her vagina, the victim replied, “Not very far. If he could even get it in at all.” The state had the burden to prove penetration. Plain error not to instruct on this.

Second, no error in using the word "victim" in the jury instructions.

Third, trial court erred in determining that second-degree sex offense was an "aggravated offense" for lifetime satellite based monitoring purposes.

Remanded for retrial on rape and incest; upheld convictions on sex offense.

State v. Burton. Durham County. Appeal of arson conviction.

Defendant burned down his rental when threatened with eviction.

First, sufficient evidence of arson where the fire was started in his room when a roommate was in the shower, and he was seen in the area shortly afterwards.

Second, no error in court failing to grant a second continuance for defendant to locate his alibi witnesses. This was a reasonable time and opportunity to prepare his defense.

Third, counsel was not ineffective in not moving for a mistrial after sustained objections to evidence (that got before the jury) that defendant had threatened to burn the house down.

State v. Corkum. Guilford County. Appeal of order vacating a prior award of 8 days jail credit.

Defendant pleaded to second degree statutory rape and given supervised probation. He was later violated and revoked. He was awarded confinement credit for 208 days. Defendant was then released with 9 months remaining on his sentence, under 15A-1368.2 (the new post-release supervision statute).

He was then violated on post-release supervision and sent to serve the remainder of his sentence. The court denied to give him 8 days credit for the time he was in jail awaiting hearing on a prior violation (that resulted in a modification).

The law on calculating jail credit is 15-196.1: "The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in
confinement in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence. The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided,
however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject."

The court was required by law to give him credit for the 8 days spent pending revocation of post-release supervision.

State v. Golden. Randolph County. Appeal of conviction for perpetrating a hoax on law enforcement by use of a false bomb.

Defendant arrested on a domestic and police find a cylindrical device they think might be a bomb.  Police questioned defendant about this and he told them it was a gag. Nonetheless, the bomb squad came out and eventually figured out it wasn't a bomb.

First, no error in allowing 404(b) evidence that defendant had been hostile/violent to the victim in the past. This was relevant to the common scheme the defendant had to intimidate the victim.

Second, there was sufficient evidence of "intent to perpetrate a hoax." Defendant had an ongoing objective scaring the victim and the jury could reasonable believe that's why he brought the gag bomb and didn't tell about it when the officers were searching his car.

Third, the trial court improperly instructed the jury on flight. Defendant made no attempt at flight after telling police there was nothing to be concerned about in the car, despite his knowledge of the fake bomb. However, such error was harmless.

State v. Grier.  Mecklenburg County. Appeal of larceny of chose in action, forgery, uttering case.

First, no error in the judge failing to instruct the jury that defendant couldn't be convicted of mutually exclusive crimes. Defendant contends that a single instrument cannot be both a forgery and a valid "chose in action."

Defendant argues that forgery requires proof of a counterfeit instrument, while larceny of a chose must show a valid instrument. However, court finds that a Larceny of chose in action only requires a check to be stolen, it does not have to be valid.

Second, there was insufficient evidence of larceny of a chose in action. Defendant was charged with stealing a blank check. This is not sufficient evidence. A blank check is not a chose in action.

State v. Hoff.  Person County. Appeal of first burglary.

Man heard someone breaking in and shot at him. Then he caught a man in his home, through a broken window. This man then fled the scene, saying the homeowner had shot his brother before he left.

First, sufficient evidence that defendant was the perpetrator where defendant's fingerprint was found inside the home and the victim identified the defendant in-court (albeit "uncertainly")

Second, counsel was not ineffective in failing to challenge the reliability of fingerprint evidence.

State v. James. Rowan County. Appeal of AWDW on a government official.

Defendant hit the deputy with a chair, during a drunk and disorderly call.

First, no  error in allowing the deputy to opine on the weight of the chair. He had a factual basis to make such statement.

Second, there was sufficient evidence, where the officer testified the defendant threw the 10 pound chair at him "like a baseball." This was a deadly weapon.

State v. Mitchell. Alamance County. Appeal of possession of marijuana, firearm by felon, and habitual felony.

Defendant was on 85 when he was stopped by a K-9 officer for speeding. During the stop, officer determined the defendant's license was revoked. The officer told them he intended to write a warning ticket, but wanted to walk his K-9 around the car first. Defendant then told his passenger to take the blunt out of her pants. The officer then searched the car and found the gun, a scale, and a couple of ounces of weed.

First,  the presence of the blunt, voluntarily acknowledged, gave probable cause to search the car.

Second, sufficient evidence of possession of firearm by felon. The gun was in the glove box of the car the defendant was driving and, when the officer was searching, the defendant told him there was a gun in the glove box.

State v. Reid.  Wake County. Appeal of trafficking conviction.

Police received multiple tips from confidential informants that the defendant had drugs. Police set up a sting on a deal, with one of the informants being involved. Police approached defendant when he arrived for the deal, smelled marijuana and frisked him and felt a "large bulge" that, according to training and experience was "packaged like narcotics." Eventually found vacuum sealed drugs.

1) Defendant complained about his appointed attorney and then decided to proceed pro se. Defendant now objects that the court did not tell him he could hire his own. Court followed 15A-1242-- advising of his right to an attorney and court appointed attorney and that he understood consequences of waiving. This was adequate, even without specific reference to right to hire an attorney.

2) No plain error in failing to instruct on entrapment. No credible evidence that defendant would not have committed the crime but for law enforcement involvement.

3) Failure to give up names of informants is an unpreserved issue.

4) No plain error in failing to suppress. The drugs here were covered by the Terry "plain feel" doctrine, as they were immediately apparent contraband upon plain touch during a lawful Terry frisk.

State v. Rollins.  Mecklenburg County. No error in failing to give defendant hearing on his MAR.

Defendant filed an MAR based on juror misconduct--watching publicity during the trial. The trial court denied a hearing, stating "[n]othing in the motion or affidavit indicates which news broadcast the juror supposedly viewed, the degree of attention the juror paid to the news story about the defendant’s case, or the extent of any information the juror actually received or remembered from the news broadcast. There is nothing in the motion or affidavit t indicate that the juror shared any of the contents of the news story with other jurors during the trial or the jury’s deliberations."

Defendant had argued that TV at that time included references to other crimes, excluded from the jury's consideration.

COA upheld, saying, "There is insufficient evidence to determine whether juror misconduct occurred as defendant’s motion and Bossard’s affidavit merely contained general allegations and speculation."

Judge Hunter dissents.

State v. Shaw. Durham County. Appeal of possession of stolen property, uttering, and habitual felony.

Defendant challenges conviction as habitual felon. One of the three strikes the state used was defendant's prior conviction for habitual misdemeanor assault. Defendant argues that the intent of the statute prevents it from being used for habitual felon.

The habitual assault statute, 14-33.2, says, "A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of 14-34, and has two or more prior convictions for either misdemeanor or felony assault, with the earlier of the two prior convictions occurring no more than 15 years prior to the date of the current violation. A conviction under this section shall not be used as a prior conviction for any other habitual offense statute. A person convicted of violating this section is guilty of a Class H felony."

The COA holds that the statute plainly forbids what the judge did in this case and remands for re-sentencing as a non-habitual offender. Further, the effective date of the statute applies to anyone being sentenced for offenses committed after that day, not to habitual misdemeanor assault convictions after that date.

Friday, December 7, 2012

NC COA Decisions, Nov. 20, 2012

State v. Barnett.  Appeal of 2d rape conviction. -- William Barnett, Iredell County.

Allegation was from 1985, when the victim was 16 and the defendant, her uncle, was 26. The victim reports that she got drunk with her uncle, took a "yellow pill" for a headache, passed out/blacked out, and woke up in a sex act with her uncle. Victim described prior molestation (touching) when she was younger by this uncle.

Over objection, the court allowed 404(b) evidence of sex acts with other cousins.

Held that the admission of the prior bad acts were not error under 404(b), as they showed a pattern of uncle handsy and his nieces.

Remanded to correct clerical errors (wrong box checked).
State v. Grice.  Appeal of manufacturing marijuana conviction / denial of motion to suppress. -- Jerry Grice, Johnston County.

Police went to defendant's home to investigate anonymous tip. From the driveway, one of the officers "looked around the residence" and saw marijuana plants growing in a bucket, beside an outbuilding.  Police seized the plants, then came back with a search warrant.

Held: The officers did not have a legal right to walk across the defendant's back yard and seize the plants. While they were in plain view, this did not give a right to the officers to enter the curtilage and seize them, as there was no exigent circumstance. The defendant was not home and there was nothing to prevent the officers from securing the area and getting a warrant.

New trial.

State v. Hope.  Appeal of Assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI). -- W. D. Hope, Randolph County.

Defendant went to victim's house because, either the victim was hitting on his wife or the victim owed him money. Then beat him in the face with a metal pipe. Defendant, in statement to police, said the victim threw the 1st punch and pulled the pipe, which defendant took from him.

Defendant requested self-defense instruction for non-deadly force; court was only going to give one on deadly force, defendant then requested no self-defense instruction.

First, no error to refuse to give the non-deadly force self-defense instruction, as it was not a correct statement of law in the situation. Second, no plain error in failing to give the other instruction, since the court did so at the defendant's request.

Finally, no error in failing to give simple assault as a lesser, because there was uncontroverted evidence of serious injury.

State v. Huss. Appeal of kidnapping, sex offense and rape convictions. -- Wayne Huss, Lincoln County.

Defendant and victim met at self-defense martial arts classes taught by the defendant. During breakup, sex occurred. Victim reports rape, defendant alleges it was consensual.

Held: Trial court erred in failing to dismiss the charges.  A rape/sex offense can only be found if: (1) force is used; or (2) the victim is "physically helpless"--defined as unconscious or physically unable to resist.

The court instructed on physical helpless theory of rape, but no evidence was presented that the victim was physically helpless: she was never unconscious and is otherwise able-bodied. The mere fact that defendant was trained martial artist and much bigger than the victim does not mean she was "physically helpless."


State v. Jones and White.  State appeals non-suit ruling on obtaining property by false pretenses  -- Eric Jones and Jerry White, Mecklenburg County.

After verdict of guilty, trial court threw out all the obtaining property by false pretenses charges and trafficking in ID theft charges. The only conviction that stood was an ID theft conviction against Jones. State appeals.

During a traffic stop of Jones, police found credit cards for four people who had been checked in to a nearby hotel by White. Evidence shows Jones used one of the credit cards at Tire Kingdom to get new tires for his car.

No error on OPFP: indictment didn't list what was stolen or the value. Listed only "services" from Tire Kingdom. Defective.

No error in trafficking. Indictment didn't list name of person (or that the name is unknown) who the IDs were transferred to. Defective.

Elmore dissents.

State v. Martin.  Appeal of satellite-based monitoring. -- Kenny Martin, Moore County.

Found it did not violation 4th by requiring defendant to submit to search and seizure.

State v. Sergakis.  Defendant tried for larceny, conspiracy, false report and breaking and entering. Jury convicted on all but breaking and entering. -- Nicholas Sergakis, New Hanover County.

First, sufficient evidence of larceny over $1,000 when victim testified that the computers taken were worth $1,100.

Second, error to instruct jury that they could convict the defendant for conspiracy to commit larceny or breaking and entering. The indicted count was just felony breaking and entering. Error to instruct on conspiracy to commit larceny, which was not a charged crime. Plain error.

Tuesday, December 4, 2012

NC Court of Appeals Criminal Decisions, Nov. 6, 2012

State v. Buckheit. Wake County. Appeal of denial of motion to suppress intoxilyzer results in a DWI.

Facts: Defendant arrested and taken to jail. At 10:33pm was advised of his right to have a witness present. At 10:39pm, Defendant called a friend to witness. At 10:52pm, the witness arrived and was told to wait. At 11:09pm, without the witness present, the defendant was made to take the intoxilyzer and failed. Witness finally saw the defendant at about midnight.

N.C.G.S. 20-16.2(a) states: before giving an intoxilyzer, the state must give the person the right to contact an attorney or witness and may delay the intoxilyzer up to 30 minutes.

Defendant was made aware of his rights, requested a witness, who arrived within 20 minutes and told the front desk. Nonetheless, the witness was not allowed to be present for the intoxilyzer (likely due to malfeasance). Evidence should have been suppressed.


State v. Cureton. Mecklenburg County. Appeal of resisting an officer, breaking and entering, larceny after breaking or entering, possession of a stolen firearm, possession of firearm by felon and habitual felony.

Issue #1: Admission of defendant's confession. Defendant refused to sign the Miranda waiver then asked questions about the right to counsel. He never specifically asked for a lawyer or signed the waiver.

No error. While he didn't sign the waiver, the signing of the waiver "does little, if anything to indicate that defendant did not validly waive his rights." Defendant was found competent and his confusion about his rights in the confession was explained fairly by the detectives. Defendant talking after being warned was sufficient to waive his rights.

Issue #2: Right to counsel. Defendant was appointed counsel three different times. His capacity was raised, but he was found competent. Defendant threatened to ill his 2nd counsel, who was then allowed to withdraw. Defendant accused his 3rd counsel of lying and wrote him, "I will represent myself in court you lying assed bastard." The trial court found that defendant had forfeited his right to counsel and forced him to proceed pro se, but asked defendant if he would like to try another lawyer and defendant refused to respond. The court then, at another hearing, tried to appoint another counsel, who met with the defendant and informed the court that the defendant did not want his representation. After trial had begun, defendant requested counsel and the trial court denied the request, saying he had forfeited it.

First, defendant was not in the gray area of Indiana v. Edwards of one who is competent to stand trial, but not to defend himself, because this standard does not apply to forfeiture, only to voluntary waivers.

Second, defendant did commit serious misconduct resulting in forfeiture. He threatened his counsel physically and with bar complaints, was non-compliant, and shouted, abused and spat at his attorneys.

Note: The court relied a lot on the fact that the state doctor diagnosed the defendant as "a malingerer [a liar]" because he threw the competency test and performed worse than one would be expected to perform if they only used chance. The state does this all the time and simply ignores the fact that one can both lie on a test AND be mentally ill. All one has to do is read the facts and you can tell this guy is mentally ill. If you give someone a mental health test and they throw it, the proper response is to note that the defendant is throwing the test and give them more subjective tests that they can't cheat on. The state just decides, if you try to cheat the mental health test, you're just a degenerative liar. Any good psychiatrist would tell you, that it's easy to be both a degenerative liar and mentally ill.

State v. Davis. Columbus County. Appeal of trafficking in opium.

First, Defendant alleges fatal variance: indictment says trafficking in opium, evidence was that it was oxycodone, an opium derivative.

Held: No variance. Indictments are facially invalid where they fail to identify the controlled substance. The statute on opium says it is unlawful to possess opium, or any salt, compound, derivative, or preparation of opium or opiate... which felony shall be known as trafficking in opium.

Thus, the plain language of the statute says that "trafficking in opium" includes opium derivatives.

Second, no error in allowing agent to testify that the pills were oxycodone. Drugs must be identified by chemical test, unless the state can establish the identity in other was beyond a reasonable doubt. The appearance of the drug is not enough. Here, the agent did run it through a chemical analysis (exactly what is vague in the opinion) and this was sufficient.

"Her testimony explained the technique she used to isolate the components of the pills, including running the material through an "instrument" that generated a graphic printout of the chemical make-up of the components, which she could then compare to known graphs of the components and identify the substances in the pills." 

Third, no plain error in instructing juror they could  convict defendant for possessing "any mixture" containing an opiate (rather than saying a derivative). This couldn't have made a difference.

State v. Kockuk. Durham County. State appeal of grant of motion to suppress.

Trooper pulled defendant at 1:00am, after seeing the car cross the dotted white line for 3-4 seconds, 2 times. Defendant was drunk. Trial court found there was not reasonable suspicion for the stop.

Weaving must be coupled with other factors to give reasonable suspicion.  Here, there was nothing more than weaving. No improper turns, signals, or otherwise erratic driving.

Beasley Dissents--two weaves that late at night is enough.

State v. Land.  Appeal of possession with intent to sell marijuana, delivery of marijuana, and habitual felon.

Indictment not defective because the delivery did not list a weight, as the amount of marijuana transferred is not an essential evidence.

Elmore dissents. If the delivery is less than 5 gms, there must be money exchanged and the indictment did not allege this.

State v. Minton.  Appeal of conversion of property by bailee.

Defendant accepted 10 checks for $500 from his co-tenant, but then never gave them to the landlord. Held that there was sufficient evidence of intent to defraud, in the form of failure to comply with contractual obligations (which is specifically exempted from the obtaining property by false pretenses statute, but not the conversion statute).

State v. Ryan.  Appeal of 1st degree sex offense and indecent liberties.

Held: Improper expert vouching. State's expert, Dr. Gutman, testified that child had been abused, her story was not fictitious, and the child's testimony had not been coached.

First, absence physical evidence, it is improper for an expert to conclude the child has been abused. This was permissible, because the doctor did not testify that the specific acts by the defendant had been committed, simply that the physical damage noted to the child was consistent with being abused.

Second, that her story wasn't fictitious and that she wasn't coached was pure vouching and inappropriate.

New trial.

State v. Sexton.  Appeal of ID Theft conviction.

Defendant arrested for shoplifting and gives fake name, Roy Lamar Ward. Gave a birth date, telephone number and employer. Issued a citation that contained a social security number. Where the SSN came from is unclear.

Indictment said used: Name, Date of Birth and SSN.

ID Theft: requires proof that someone uses identifying info of another with intent to defraud to obtain economic advantage or avoid legal consequences. Acknowledging the last 4 digits of the SSN was enough. The fact that the SSN was written on the citation are enough to "use" it.

No plain error to fail to instruct jury that had to find SSN to convict the defendant.

Friday, November 9, 2012

Death Penalty Trials 2012

No death verdicts this year and only five capitally tried defendants (compare with 15 capital trials last year and 3 death sentences).

Matthew Salentine, Johnston County (November). Jury returned unanimous life verdict.

John Bullard, Robeson County (June). Jury rejected 1d murder, finding guilty of the lesser offense of 2d murder.

Jason Williford, Wake County (June). Jury returned unanimous life verdict.

Issaam Chaplin, Guilford County (May). Jury returned unanimous life verdict.

Danny Hembree, Gaston County (April). Mistrial declared during guilt phase.

Wednesday, October 31, 2012

NC COA Opinions, 10/16/2012

State v. Black. Lincoln County. Appeal of sex offense convictions on multiple victims.

First, plain error to allow expert to vouch for one of the victims statements. One of victim's therapists improperly vouched for the victim. Said, "I do not think that she is lying. I think it truly, truly happened." Further, said that the victim's actions were "consistent with someone who had been sexually abused." While error, was not prejudicial due to overwhelming evidence of guilt.

Second, testimony of DSS social worked that they made a finding of "sex abuse" was properly admitted. This was elicited on redirect and was directly responsive to defense cross-examination. Defense opened the door.

Third, no error in allowing state to prove up prior inconsistent statements of defendant that she had told other things about one of the victims of a sexual nature. This was not a collateral matter.

State v. Graham.  Cabarrus County. Appeal of indecent liberties, assault, and sex offense.

Two boys spent the night with their basketball coach, before a game the next day. Around midnight, one of the boys returned home, banging on the door, in nothing but his underwear and reported that defendant had touched his private area. The other boy later stated he too had been assaulted.

First, no plain error in allowing ER doctor to "vouch" for credibility of one boy, as these statements were elicited on cross.

Second, defendant's confession was not involuntary. Defendant voluntarily went with police to the station and was not given Miranda warning. He was informed of his right to leave. Was interviewed and confessed. Police statements that they would help him "deal with his problem" was not an improper inducement to confess, as there was no direct promise of benefit. Further, statements of the officers asking if he believed in got and false statements that defendant had failed a polygraph and DNA test did not render the confession involuntary.

Third, no error in admission, on cross, of defendant's prior statement that he had been investigated for touching five boys in Michigan.

State v. Miles.  Vance County. Appeal of discharging a firearm into occupied dwelling and possession of firearm by felon.

Defendant, in a shoot out with another person, turned and fired at the other guy's grandma and bullets went into the house.

Sufficient evidence that the house was occupied. The grandma and others were on the front porch and ran inside to escape the gunshots. There was no one inside when the firearm was discharged. However, a house is occupied if someone is on the front porch, since it was covered by the same roof as the house.

State v. Okwara.  Mecklenburg County. Appeal of contempt of court.

Defendant, a court appointed defense attorney, was defending a rape case before Judge Robert C. Ervin. After an in-camera hearing, defendant was allowed to question alleged rape victim about whether she had engaged in consensual sex with defendant before.

Then, on cross, the attorney asked if she told the prosecutor she had been raped by her cousin at age 15.

Court held her in contempt for going beyond his order.

First, holds that this question did violate the rape shield statute (Rule 412). Must petition in camera to ask any questions about prior sexual behavior of a victim.

Second, this was at least gross negligence, so it counts as "willful" under the contempt statute.

State v. Pasour.  Gaston County. Appeal of denial of motion to suppress.

Police received a call that defendant was growing marijuana. Police went to the residence on knocked. Received no response, so they went to the back yard. Found marijuana plants.

Held: Illegal search, evidence should have been suppressed. No justification for officers to enter back yard when no one answered the knock. Police may not enter the back yard unless there is reason to believe that they will find the homeowner there. Defendant had a reasonable expectation of privacy in the area of the curtilage of this home.


State v. Patterson. Alamance County. Appeal of failure to report change of address for sex offender.

During check, officer went to defendant's listed address and someone told him he no longer lived there. Defendant sentenced to 2 years and ordered to pay $1,954 in court costs. Judge stated that "I have no discretion but to charge court costs and I'll impose that as a civil judgment."

Held: Court erred in failing to exercise discretion on court costs. Court does have discretion on court costs and must exercise it, one way or the other.

Remanded for re-sentecing on court costs.

State v. Poole.  Carteret County. Appeal of possession of controlled substance in a jail and habitual felony.

State lab person testified based off another agents report and was not involved in the testing. No objection was made at trial.  While this was error, defendant confessed to possessing the cocaine. This was sufficient evidence to satisfy the burden of the defense. Error is deemed harmless.

State v. Wilkerson. Hoke County. Appeal of felony larceny after breaking and entering and felony possession of stolen goods.

Defendant's car (with two men inside) seen in the area of a breaking and entering. The next day, police went to defendant's house and he consented to a search of the car, which revealed computer items from the breaking and entering.  Nokia custodian of records also testified about calls made from defendant's phone, including cell tower locations. At time of B&E, his phone made calls withing 1.5 miles of the residence. Also, admitted a text message from the sent folder saying ,"I got a 64 inch flat Samsumg" the day of the crime.

First, the text message was adequately authenticated. Do not have to show that the defendant sent the message, as long as can reliably show the text came from the particular phone and there was circumstantial evidence to suggest he was the sender.

Friday, October 12, 2012

NC Supreme Court, October 5, 2012

Just one criminal decision in this batch.

State v. Oates, Sampson County. Appeal of unanimous decision of Court of Appeals.

COA found that the state's oral motion to appeal suppression, made in open court after the grant of the motion, but 3 months prior to the issuing of a written decision, was untimely.

Under Rule 4, the relevant time period for filing notice of appeal begins when the judgment is rendered and ends 14 days after the entry of judgment. The state's appeal is timely.

Vacated and remanded to COA for decision on the merits.

Friday, October 5, 2012

NC Court of Appeals Criminal Decisions, Oct. 2, 2012

State v. Barnett. Gaston County. Appeal of failure to notify sheriff of change of address within three days for a sex offender, a class F felony.

The indictment failed to allege an essential element of the charge -- that defendant was a person required to register. The indictment was fatal and the trial court lacked jurisdiction. Judgment vacated.

State v. Cameron. Durham County. Appeal of felony flee/elude arrest with a motor vehicle.

Defendant fled from an officer, after a traffic stop. Defendant told the officer she wanted a female officer to conduct the stop and testified at trial that this was the reason she drove away.

Defendant argues on appeal that there was insufficient evidence of specific intent to elude.  Defendant's statements clearly show intent to elude the law enforcement officers who were chasing her. Even if her intent was to turn herself in to a female officer, it was still intent to elude.

No plain error when the jury sent out a note asking for a definition of fleeing to avoid arrest and asking if intent mattered and the judge said, "“[I]ntent is not part of the operating a motor vehicle to elude arrest charge.” While possibly erroneous, it was not plain error, as there was clear evidence of intent.

No IAC for trial lawyer not correcting this instruction. Even if IAC, would not have effected the outcome.

State v. Powell. Mecklenburg County. Appeal of murder conviction.

Defendant charged with shooting a man in his home. Defendant's cell phone was left at the home. State put on this evidence and a jail snitch. Convicted of 2d murder.

First, defense counsel oral stipulation that out-of-state conviction was sufficient to find him a record level II. 

Second, no error in allowing an LEO to testify as an expert in Jamaican patois. A police officer "translated" phone calls made by defendant from jail. The officer was born in Jamaica, lived there for 20 years, was married to a Jamaican woman and spoke Patois at home. Helpful to trier of fact and qualified to testify.

Third, sufficient evidence. Defendant's phone was there, a call was made from it near the house, and a jail snitch said the defendant said, "I must have dropped my phone after I killed him."

Fourth, prosecutor did not impermissibly vouch for a witness (no plain error), by asking if the prosecutor had told him not to lie and that he couldn't help him in his federal case.

State v. Rouson. Writ of Certiorari denied, where defendant failed to give timely notice of appeal and a meritorious argument not established.

Thursday, September 20, 2012

NC COA Criminal Decisions, Sept. 18, 2012

Just One!

State v. Perry. Appeal of possession of firearm by felon and habitual felony.

Police executed a search warrant in an apartment and found numerous people inside and a shotgun in a closet and a pistol in a dresser. Defendant was sitting in a car outside. They brought him in, Mirandized him, strip searched him, and questioned him. He acknowledged that the apartment was his parents, but said he didn't know where the guns came from. He also said "they were all looking at them" in the parking lot. He had seen others playing with the gun and had seen one of the others bring it into the house. He said the shotgun had been there for a long time and that it used to be in the other apartment. Defendant acknowledged that he had touched and played with the guns, but denied owning them.

During jury deliberations, the jury requested the definition of possession and a "list of criteria." The jury sent out highlighted instructions and asked, first, if the defendant had to have it on the day of arrest and if "playing with it" counts as possession. The Judge responded:

[T]he bailiff has handed me back the copy of the jury instructions that I provided to you folks that you all done some marking and writing on page number three. I have reviewed what you have handed back, particularly the – I’m going to address it I guess in two parts. The first part is the highlighted language. A person has actual possession of a firearm and the highlighted language person has constructive possession of a firearm if the person does not have it on them [sic]. And then there appears to be some question or language that reads day of arrest or can previous days be considered.

In my discretion I’m unable to determine exactly what it is that you’re asking for, looking at the form of the question or the writing that you handed back.

So I’m going to charge you that you are to apply your common understandings from your everyday use of the words that are contained within the jury instructions and the law that I’ve charged you, and apply that to the evidence that has been presented.

With respect to the question that’s on the bottom of the page, does playing with constitute power and intent to control disposition.

In my discretion, I’m going to charge you that you have heard the evidence in this case and you’ve heard the evidence and you’ve heard the law, and it is once again your duty as a jury to answer the question that’s been proposed based on the evidence and the law that I’ve provided for you.

That is my instructions to you. I’m going to give this back to the bailiff, ask you to return to the jury room and resume your deliberations, once you’re all present.

Judge Gessner instructed on both actual and constructive possession, even though the state only argued constructive possession. There was no evidence of actual possession, but no evidence of constructive possession. The court erred in instructing on constructive possession. Further, the state only argued constructive possession and told the jury not to consider actual possession, leading to confusion. Failure of the court to hold further inquiry after the jury's questions likely affected the finding of guilt.

Plain error. New trial.

Friday, September 7, 2012

NC COA Criminal Decisions, September 4, 2012

State v. Derrick Allen. State appeal of dismissal.

Defendant was charged with 1st degree murder of a child. Defendant stated that the child became unresponsive during a bath; during autopsy, some abrasions to the vaginal area were found, and some hemorrhaging of the brain. The medical examiner stated the cause of death was shaken baby syndrome.

SBI Jennifer Elwell analyzed some of the child's clothes and found found blood in preliminary testing, but confirmatory testing should the tests were negatives. Elwell left the confirmatory testing out of her report. Mr. Allen pleaded guilty in 1999, but was allowed to take his plea back later because of this hiding of evidence by the SBI.

Subsequently, in 2010, his new lawyer made additional discovery requests. Turns out, the state had failed to disclose that the child's mother had failed a polygraph and all physical samples from the child had been destroyed.

Judge Hudson ordered that the state provide all discovery by 12/1/2010. 8 days later, the state provided additional SBI discovery. Judge Hudson then dismissed the case, due to failure to provide exculpatory discovery in a timely manner.

First, under 15A-954(a)(4), where a defendant's constitutional rights have been flagrantly violated and there is irreparable prejudice, the case should be dismissed.

The court found that, while the state acted very shady, the material was still provided in meaningful time for trial, thus no Brady/constitutional violation. Further, the remedy was too drastic for the violation.

State v. Brown. Appeal of probation revocation.

Defendant was placed on probation, with condition that the probation was to be completed in Virginia. Because defendant never paid the $180 fee to transfer to Virginia, probation was never transferred and he was never supervised in Virginia. Revoked as an absconder.

No error, even though defendant didn't receive a "written statement" of probation, as required by 15A-1343(c). This is not a defense where defendant failed to report for initial processing.

State v. Lewis. Appeal of improper storage of firearm and involuntary manslaughter.

Defendant's three year old son shot himself while defendant was at work. The defendant's son found the gun and it was loaded and had no safety mechanism. The handgun trigger weight had been lessened. No evidence was presented as to where the child found the gun.

First, sufficient evidence of "improper storage." Only contested element is if defendant kept the gun "in a manner that the [defendant] knew or should have known that an unsupervised minor would be able to gain access to the firearm." Even though the state offered no evidence of where the gun was kept, the fact that a 3-year old found it provides reasonable inference that it was improperly stored (the gun was usually kept on top of an entertainment center, out of reach, but it must have been elsewhere for the 3-year-old to find it).

Second, sufficient evidence of manslaughter. Involuntary manslaughter is the unintentional killing caused by a culpably negligent act or omission or by unlawful act not amounting to the felony. Here, proof of the improper storage (misdemeanor) was sufficient to prove the manslaughter.

Third, no prejudicial error in allowing state to admit photo of all defendant's weapons, after the state had removed them from their cases and piled them all up.

Wednesday, September 5, 2012

Thursday, August 23, 2012

NC COA Criminal Decisions, August 21, 2012


State v. Davis Appeal of 1st degree sex offense and indecent liberties.

First, trial court erred in admitting, under 404(b), defendant's fictional writings (journal of short stories) that included a story of forcible, anal rape of a female adult. This was not proper evidence of a "common scheme" as found by the trial court. They are not sufficiently similar--one is a writing about anal rape of an adult female, the facts here involved anal rape of a male child.

Second, trial court also erred in allowing state to cross defendant on results of psychological evaluation that were not admitted, that described defendant as a "psychopathic deviant." This was not proper impeachment material--it was a prior statement of the defendant and it was not admitted into evidence. The DA injected insinuating questions for the purpose of prejudicing the defendant.

New trial.

State v. Frederick.  Appeal of trafficking of cocaine, possession of firearm by felon, and maintaining a vehicle.

Police stop a Z-71, driven by another person. Four people were in the truck, defendant in the passenger seat. At a license checkpoint, the driver had an expired license. Police talked to defendant and the driver, who gave conflicting stories. They brought a K-9 over and it alerted. Found drugs under the driver's seat, and brick of cocaine and a handgun on the side of the road. Defendant admitted possession to some marijuana found near the cocaine, then recanted. The brick was tested and worth $40,000. The driver testified against defendant as part of a deal. Defendant proceeded pro se on a motion to suppress and lost, then had counsel at trial.

Defendant alleges court failed to advise him of possible punishment before allowing him to proceed pro se during his motion to suppress. This was a critical stage and defendant had 6th Amendment rights. Only advisement was judge saying: "It's a class C felony, you could go to prison for a long, long time." and later that "It's a mandatory active prison sentence."  15A-1242(3) requires that the court adequately advise a defendant of the range of permissible punishments. This was not adequately specific. Such error was prejudicial. New trial.

Other Cases.

State v. Harris and Whitaker.  Appeal of robbery with a dangerous weapon and conspiracy.

First, challenge to substantial evidence not preserved.

Second, no plain error in failing to instruct jury on identity.

Third, no plain error in not instructing on lesser of "aggravated common law robbery." Held that there was no such offense and they were not the same. No error.

State v. Miles. Appeal of 1st degree murder from Wilkes County.

The victim owed the defendant $41,000 dollars. The victim went missing. At the time, an RV with lights on the top and bottom was scene leaving the victim's house. Around the same time, the defendant's wife owned an RV with lights like that, that was recovered 2 years later in Georgia, with a bleach stain and a bloodstain not matching the victim inside. Later, the body was found behind another house. Victim was shot in the back of the head. Defendant left a threatening message right before the killing on the victim's answering machine. Calls from the defendant's phone hit towers in the area of the killing. Defendant told police he was in Durham during the killing. Also, a snitch testified.

First, this was substantial evidence.

Second, defendant was not allowed to question the victim's wife about the victim's infidelity and to put forward a theory that she killed her husband. Defendant failed to preserve the constitutional issues. No error in court ruling this as irrelevant, as there was no reasonable possibility that a jury could conclude the wife killed her husband.

Third, no error in failing to submit the lesser of 2d murder.

Calabria dissents, on grounds that there was insufficient evidence.

State v. Osterhoudt.  State appeal of granted motion to suppress.

Trooper pulled over a car at 1:00am on Fifth Street (near bars) in Greenville, after seeing the defendant make a "wide right turn," crossing the double yellow line. Defendant then pulled halfway into a parking spot. He was pulled over and eventually given a DWI.

The District Court suppressed the stop, holding that it is not a violation to cross a double yellow separating a turn lane from a straight travel lane at an intersection when making a right turn when no traffic was present.

Overturned, finding that defendant violated NCGS 20-146(d)--which the court is now deciding includes a rule that you must maintain your own lane. Also NCGS 20-153(a) which says “a right
turn shall be made as close as practicable to the right-hand curb or edge of the roadway.”

Although the driving was "normal," there was a traffic violation, so the stop was valid.

Friday, August 10, 2012

NC COA Criminal Decisions, August 7, 2012

Court  Guts Felana Line of Cases

State v. Sellars.  State appeal of granted motion to suppress. -- William Sellars, Jr.

Police stopped defendant for DWI. Upon stop, it was clear he was sober. Defendant was nervous. After giving him a ticket, the police asked if he would consent to a drug-dog sniff. Defendant refused and police brought over the drug dog anyway. It alerted and drugs were found. Trial court suppressed based on prolonging the stop; the state appealed.

Held: any prolongment of the stop for the sniff was de minimis.

First, under the Felana/Myles line of cases, any prolongment without reasonable suspicion is an unconstitutional detention.  Under the Brimmer case, he court found that prolongment for a "very short period of time" for a drug dog sniff is de minimis.

Held, Felana did not consider the de minimis analysis--so prolongment is OK, even without any reasonable suspicion, as long as it's not that long. In other words, the police can legally detain you without any reasonable suspicion, as long as it is brief.

Other Cases.

State v. Anderson. Lincoln County.  Appeal of assault with a deadly weapon inflicting serious injury. -- Jimreco Anderson.

During the second day of trial, defendant (who was free on bond) did not appear and the case proceeded. The state rested and a defense request for a continuance, to get the defendant present to testify, was denied. Jury returned a verdict. At sentencing, defendant requested a mistrial and presented a doctor's note showing the defendant was, in fact, in the hospital. However, the note lacked a date/time of admission.

First, a defendant has a right to be present at all parts of a trial. In a non-capital case, such right is waiveable. A defendant's failure to appear waives this right. The defendant has the burden of showing that such absence was involuntary, rather than a waiver. No abuse of discretion here in court finding that defendant didn't prove he was in the hospital during the entire second day.

State v. Avent. Nash County. Appeal of first degree murder conviction. -- Dewayne Avent.

First, no error when trial court allowed state to amend indictment from Dec. 28 to Dec. 27. Defendant alleged that time was of the essence and he had relied on an alibi defense, making such change material and making the original date mistake an unamendable defective indictment.

Under the law, if "time is of the essence," then the amendment is not permitted by N.C.G.S. 15A-923(e), because it constitutes a substantial alteration of the indictment. Here, time was not of the essence.

At trial, defendant had an alibi for the 12/27. Then the court allowed a change to 12/28. Nonetheless, the defendant's alibi covered the new period, thus he was not affected. Further, there was no surprise, as all other state's discovery listed the murder as occurring on 12/27.

Second, no error in refusing to compel disclosure of a confidential informant. Because the informant was not an actual participant in the crime, nor does it contradict any material facts in the case, no error in denying disclosure.

Third, no error in allowing the state to impeach it's own witness (who on the stand said the defendant wasn't there) with a statement given to police that he was there and killed the victim. Either party may prove up a prior inconsistent statement on a non-collateral matter--if there was not a "mere subterfuge on the part of the state," as the state was genuinely surprised by the witnesses denial.

State v. Boyd. Appeal of 1st degree burglary, second degree kidnapping, sexual battery and habitual felon, on remand from the Supreme Court. -- Bryant Boyd.

Found it was plain error for the court to instruct on 2d kidnapping on a theory of removal, because it was unsupported by the evidence. Defendant was indicted on kidnapping on a theory of confining and/or restraining. Judge instructed also on removing. Being forced to sit on the defendant's lap does not constitute removal for kidnapping purposes. This was still plain error, even though court instructed on multiple theories of kidnapping.

Stroud dissents.

State v. Braswell. Appeal of DWI and leaving the scene of a collision. -- Chad Braswell.

A white GMC with front end damage struck another car and fled the scene on Hwy 105 near Boon. Five minutes later, an Officer saw a white GMC with front end damage on Hwy 105. The officer pulled the defendant over. The defendant said he "Didn't think he had damaged the other vehicle." Failed field sobriety test, but was negative on the alka sensor. Arrested. Blood test was positive for benzodiazapines. Defendant was never irandized.

First, no error in failing to suppress the statements and field sobriety test. No Miranda, as you are not in custody simply from a traffic stop/questioning.

State v. Cox.  On remand from the NC Supreme Court. -- Ronald Cox.

Remanded for reconsideration in light of State v. Sweat. COA previously reversed conviction on corpus delecti grounds (that the defendant's confession was the sole evidence that a crime had occurred.) Sweat said that a defendant's confession alone could prove guilt if "the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness.” (rather than the old rule, that require actual independent evidence of the crime). Here, the confession had no content except that defendant owned the gun. There was no corroborating circumstances or evidence of this.

State v. Cornell.  Appeal of resist, delay, obstruct a police office. -- Jorge Cornell.

An officer testified that the Defendant was seen, at a bluegrass festival, yelling and flashing Latin Kings gang signs towards different gang members. An officer went to talk to the group and defendant stepped between the officer and the other folks and told the officer it was OK, they were signalling at him and there would be no problems. The officer told him to remove and he refused, and was arrested.

First, this was sufficient evidence of RDO. While a citizen cannot be arrested for RDO when they merely "remonstrating with an officer ... or criticizing or questioning an officer while he is performing his duty when done in an orderly manner," here defendant did more than that--he refused to comply with officer orders to move.

Second, the 1st amendment issue was not preserved.

Third, trial court refused to instruct the jury with language from NC case that "merely remonstrating with an officer in behalf of another, or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstruction or delaying an officer in the performance of his duties." There was not sufficient evidence to support this instruction.

State v. Foster.  Appeal of denial of post-conviction motion. -- Harold Foster, Jr.

In  murder conviction (Alford plea), defendant requested that the evidence in the case be tested for DNA, submitting an affidavit of his innocence. State argued that defendant was charges as an accessory before the fact and offered as some evidence an exhibit showing the prosecutor's outline for the trial of a co-defendant that included the defendant's testimony as an aider and abettor.  Court denied the the motion on the grounds that the testing could not exonerate the defendant.

COA upheld. Found that it was error to consider the prosecutor's outline as hearsay, but such error was harmless.

State v. Joe.  On remand from the NC Supreme Court. -- Robert Joe.

Previously held that COA had no jurisdiction to hear state appeal of suppression, on grounds that state's comment amounted to dismissal in open court. That was overturned by the NCSC. It's back on remand to consider the motion to suppress.

Rules that the officer did not have probable cause to order the defendant to stop. Although the defendant threw the drugs after the officer attempted illegal arrest, "when a suspect 'discards property as the product of [] illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of privacy with respect to it.”

As such, the property was not abandoned and the seizure was unlawful.

State v. Martin.  Appeal of 1st degree sex offense, 2d degree sex offense, and 1d kidnapping.

Victim testified that defendant, her separated husband, broke into her house and raped her and choked her. Defendant testified that it was consensual and afterwards, he came clean and admitted infidelity and his wife made this up. Defendant admitted to choking his wife after she threatened to make these false reports.

First, no error in refusing to allow defendant's expert to testify. Defendant proffered a criminal profiler that could testify that the victim's version of events led to "investigative red flags" and errors made by the police. Court did not abuse discretion by excluding this as improper expert testimony on credibility.

Second, double jeopardy violated by sentencing defendant for kidnapping and sex assault, as the acts of restraint were not "independent" of the sex offense and were no greater than that required to commit the sex offense.

Third, no error to refuse to instruct only on assault on a female as a lesser included offense of rape. Assault on a female is not a lesser included offense of rape (must show victim is female for assault on a female, but not for rape).

State v. Mason.-- Tyrece Mason.

Defendant robbed an owner of a Chinese restaurant. His friend held a gun on the owner and defendant reached in his pocket and grabbed his cell phone. Police arrived and defendant was arrested.

First, no fatal variance  between name of the victim in the indictment and the evidence at trial (You Xing Lin v. Lin You Xing). This was adequate to give notice.

Second, sufficient evidence of "taking" for a robbery, here, where defendant took the victim's cell phone out of his pocket and then cast it away. When something is forcibly removed, even for a shot amount of time, it constitutes a taking. 

Third, sufficient evidence.

Fourth, no error in allowing the officer to testify about corroborative statements of the victim made to him at the time, even though they were made through an interpreter and the interpreter wasn't available for confrontation. No confrontation problem, since the victim actually testified at trial.

Fifth, no error in denying the "mere presence" instruction, since the evidence showed the defendant with his hand in the victim's pocket.

Sixth, it was error for judge to send back exhibits, over objection of defendant -- N.C.G.S. 15A-1233(b), but this was harmless.

State v. O'Connor. State appeal of granted motion to suppress. -- Alejandro O'Connor.

Defendant challenged the traffic stop.  Trial court suppressed but didn't make findings of fact. Remanded for findings of fact.

State v. Smith. State appeal of granted motion to suppress. -- Curtis Smith, Jr.

Held: a drug dog's positive alert at the front side driver's door of a motor vehicle does not give probable cause to conduct a warrantless search of a recent passenger.

Thursday, July 26, 2012

NC Court of Appeals, Criminal Decisions, July 17, 2012

State v. Askew.  Pasquotank County. Appeal of indecent liberties probation revocation.

Defendant was charged for "failing to have an approved residence plan." Defendant was never released from prison on other charges, so the violation was only failing to submit his residence plans, not actually failing to live someone appropriate. Under DCC policy, a defendant must submit residence within 24 hours. They judge found the defendant in a "catch-22," but nonetheless found him in willful violation.

Here, defendant's probation was revoked for reasons beyond his control. Violation was not willful. Reversed.

State v. Talbert. Buncombe County. Appeal of revocation of probation.

Placed on probation.Similar issue as in Askew, in that defendant didn't have a residence lined up from jail. Found this not to be a willful violation of the condition of "residing at a residence approved by probation officer."

Other Cases.

State v. Bell.  Person County. Appeal of three counts 2d kidnapping, two counts robbery with a dangerous weapon, four counts of 1d degree sex offense, and one count of 1d burglary (a home invasion assault).

Defendant challenges search. Court held that the search was consensual.

Facts: Based on what happened, the victim's believed the intruder was a former neighbor, Mr. Bell. They tracked Bell down and asked for consent to search his room, which he agreed to. In his room, they found a camera that was similar to one taken at the scene, as well as other evidence. Once the police found those items, defendant withdrew his consent. The police left, called the DA, then re-entered and recovered the items they had found prior to defendant's revocation of consent. They did not search any further--until they got a warrant.

Trial court found that the search was consensual, but did not make a specific finding that the consent was voluntary. This was not an error, because defendant never argued the consent was involuntary, only that he didn't consent.

State v. Brunson. Cumberland County. Appeal of attempted statutory rape, 8 counts of sexual activity by a substitute parent, 7 counts of indecent liberties, 4 counts of crime against nature, and 4 counts of sex offense, and 1 count of attempted statutory rape.

First, defendant failed to preserve error in the court's refusal to conduct an in camera review of DSS materials.

Second, no IAC claim where defendant fired his attorneys and represented himself.

Third, no error in failing to have a timely probable cause hearing.

Fourth, not plain error for victim's mother to testify that a physician diagnosed her daughter with joint disease due to trauma from the injury.

Fifth, no error in quashing subpoena of a judge who heard a restraining order case and found defendant had committed 1st degree rape (rather than the actual charge).

State v. Collins. Cumberland County. Appeal of guilty plea to assault on a person who is handicapped.

First, plea was supported by a factual basis--statement of facts was that defendant took his 80 year old mother's crutch and beat her with it, while telling her he was going to kill her. This was sufficient basis to show the victim was handicapped and the defendant used deadly force.

Second, the plea was informed. A condition of the plea was that defendant complete 2 years of misdemeanor probation. If he failed to do so, the felony would not be PJC'd and he would be sentenced as a felon. Plea explained that clearly.

Third, indictment valid, even though it does not specifically identify the victim's handicap.

State v. Harris. Forsyth County. Appeal of rape of a child, sex offense, kidnapping, and indecent liberties convictions.

First, no plain error in failure to intervene ex mero motu when prosecutor said, in closing, that "There are only two people in this courtroom as we sit here today that actually know what happened between the two people, and that’s [Zora] and the defendant.” Held that this was a comment on the "limits of the physical evidence," not an inappropriate comment on defendant's silence.

Second, DNA expert testified that defendant's DNA was recovered during rape kit. A trainee, Jill Applebee, actually conducted the tests under his supervision. Because he was directly supervising this, no Melendez-Diaz/confrontation problems of putting the results on through him.

State v. Hunt. Randolph County. Previously, the COA reversed on grounds that state failed to prove victim was mentally disabled (for sex offense charge) and the S.C. reversed. This is opinion on the remaining issues.

First, no IAC for trial counsel opened the door to prior sex offense pending charges by asking defendant, on direct, if he had ever done such a thing before (then he got crossed on the pending charges). Other instances were already in the record and don't think that this one additional one led to harmful error.

Second, arrest judgment on crime against nature conviction under double jeopardy. Crime against nature is a lesser included of sex offense (even when basis is mentally disabled victim).

Third, no error in failing to grant mistrial. A counselor testified on voir dire offered by the state that the defendant's son called and asked, after he had testified, "what would happen to someone who lied in court." Afterwards, defense stated it would not be calling the son, because of fear that the defense counsel would be called as a witness if he did so. The court did not hold a hearing. No abuse of discretion.

Stroud: Dissents. Court should have held a hearing on the mistrial/conflict issue.

State v. Kelly.  Union County. Appeal of second degree murder conviction.

First, sufficient evidence where baby was found, with umbilical cord attached, in the burn pile in a house out in the woods; defendant denied being the mother (DNA said otherwise), then mother confessed to having the baby and leaving it beside the road in hopes someone would find it (she later recanted it and said the baby's father took the baby).

Second, IAC claim dismissed without prejudice due to undeveloped record.

Third, no error on failure of court to instruct on jury nullification. In fact, courts have a duty to instruct the opposite. "If defendant’s argument were to be adopted in our criminal justice system, it would lead to chaos and an absence of justice in North Carolina."

Appellate Counsel Admonished [Yikes!]. "Counsel should be zealous advocates for their clients. However, this zealous advocacy does have limits. Appellate counsel for defendant has exceeded these limits in the instant case. She vigorously attacked the professionalism and ethics of the prosecutors for failing to believe defendant’s recantation of her confession and proceeding with the murder prosecution in this case. Some of the language used by counsel to describe the conduct of the prosecutor was: (1) “failed to investigate the truth[;]” (2) “distorting the truth[;]” (3) “misled and misrepresented facts[;]” (4) “subverted the truth by presenting false evidence in the form of [defendant’s] confession[;]” (5) “suppressed the truth by failing to disclose potentially truth-enhancing evidence[;]” and (6)  “dominated the fact-finding process all led directly to [defendant’s] conviction for a crime she did not commit.” Appellate counsel for defendant went on to assert that “[a] prosecutor should be  professionally disciplined for proceeding with prosecution if a fair-minded person could not reasonably conclude, on the facts known to the prosecutor, that the accused is guilty beyond a  reasonable doubt.”

We hold these comments to be unsupported by the record in this case and highly inappropriate and urge counsel to refrain from making such comments in the future."

State v. Mather. Moore County. Appeal of carrying a concealed handgun outside permit (while drinking) conviction.

Defendant argues that there was a fatal variance between the charging document and the evidence at trial.

Defendant was charged with carrying a concealed gun. Nothing was mentioned in the indictment about alcohol. The statute says that carrying a gun with a permit is an exception to the law. Exceptions generally are not elements of the crime, especially those that exempt a certain class of persons. While state still holds ultimate burden of proof, it is not an essential element that must be alleged.

State v. Robinson. Buncombe County. Appeal of 1st degree murder conviction.

First, court denied counsel request that the defendant be evaluated for competency.  Under statute, anyone can raise competency and the court must hold a hearing. The method of inquiry is largely within the discretion of the judge. Burden rests on defense to show mental incapacity. Defendant had substantial prior evaluations, all finding him competent, but saying that he was on the border and, if his status worsened, he could easily become incompetent. Defense counsel reported that his status had worsened in his conversation. HELD: Court erred in refusing to continue the proceedings to allow defendant to be evaluated. Remedy would be judgment vacated and remand for court to determine if a retrospective competency hearing can be held and, if so, hold one--BUT, Dr. Corvin, defense expert, testified at trial that he was not concerned about competency and defense did not question him further, so no relief.

Second, defendant had valid waiver of Miranda before making statements. Defendant argues that he was not informed that he would be provided with a lawyer, even though he could not pay for one. However, he was provided a written form with this and signed. Despite his mental problems, waiver found valid. Also, there was overwhelming evidence of guilt.

State v. Rollins.  Henderson County. Appeal of misdemeanor breaking and entering, first degree kidnapping, second degree rape, and resisting an officer.

HELD: Trial court violated defendant's 6th Amendment right to a public trial was violated when the trial court closed the courtroom during the victim's testimony.

6th Amendment gives right to public trial. This right is limited and can give way to other interests, such as the interest of inhibiting disclosure of sensitive information. Four part test:
  1. “The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,”
  2. “The closure must be no broader than necessary to protect that interest,” 
  3. “The trial court must consider reasonable alternatives to closing the proceeding,” and 
  4. “It must make findings adequate to support the closure.
Trial court made no findings. The absence of findings entirely is error. Remanded for hearing on the propriety of the closure and for further findings on whether the closure was appropriate.

Wednesday, July 25, 2012

Willoughby Rejected Life Offer in Williford Case Due to Race

Colin Willoughby, DA of Wake County, continues to spend state money recklessly on his quixotic quest for a Wake County death verdict.

Cost figures show Williford's counsel was paid over $700,000 for their time. Figures for DA time, court time, expert time, and police time are not included. The state has always fought for meticulous accounting of defense time and meticulous avoidance of counting of it's time, but you can bet the figure is well over a million.

Williford's lawyer offered a plea to life without parole over two years ago, to which Willoughby said he "had to seek the death penalty in this case with a white upper-middle-class family in order to seek it in cases involving poor black kids from the projects."

What a waste of our money!

See story here.

Thursday, July 5, 2012

NC Court of Appeals Criminal Decisions, July 3, 2012


State v. Harwood. Buncombe County. Appeal of convictions for possession of firearm by felon and possession of cocaine and marijuana.

Trial court erred in denying defendant's motion to suppress.

Anonymous tip said that Defendant would be selling marijuana to an unknown person at a convenience store in a white vehicle. Police found defendant at that convenience store and then followed him to an address. They placed the defendant on the ground and handcuffed him. Ran his warrants and arrested him on an old warrant.  Defendant Mirandized and confessed.

Defendant was seized, even though police never turned on the blue lights and pulled him over, as they followed him to a driveway, took him out of the car and put him on the ground in handcuffs. The police lacked articulable reasonable suspicion to make this seizure. This anonymous tip was not sufficiently reliable--it did not have adequate amount of significant detail and the reliability of the informant was unknown.

Further this amounted to plain error.

Other Cases.

State v. Huerta.  Guilford County. Appeal of trafficking conviction.

First, a brick and 12 small bags of suspected cocaine were bagged by police. Their containers were removed and they were all put together in 3 new bags. Defendant challenges the testimony that it was all cocaine, as it was not tested until it was mixed together. In light of the preliminary testing done at the scene (of all 13 bags) (unreliable on it's own) and the confirmatory testing of the 3 bags, no error.

Second, no error in state testifying that a gun was seized in the defendant's closet of the home. Possession of a gun is relevant to charge of possession with intent to sell, as firearms are frequently involved in the protection of the illegal drug trade.

Third, sufficient evidence of constructive possession where drugs found in defendant's shared home and additional incriminating circumstances were: defendant had an illegal .40 gun and more than $9,000 in his bedroom closet; defendant had $2,000 on his person; $50,000 in cocaine was found in the addict; and only other residents were defendant's wife and children.

State v. Morston. Hoke County. Appeal of conspiracy to commit murder, AWDWIKISI, and discharging a firearm into occupied property and sentenced to 30 years. Defendant also convicted for 1st degree murder, but does not appeal that sentence. Case had been remanded for re-sentencing in 2011.

First, trial court did not err in refusing to hear further evidence, as the remand was largely to correct errors in using the same evidence to find multiple aggravating factors.

Monday, July 2, 2012

RJA Repealed

The House just over-rided Gov. Purdue's veto.

See which five democrats just made your state worse here.

Veto Override in NC

NC Senate overwhelmingly voted to override the RJA veto.

The House is debating the bill now. Listen it at

Friday, June 29, 2012

Gov. Purdue Vetoes Bill that Guts the Racial Justice Act

The Republicans and 5 cowardly democrats voted to take away the prying eyes of the courts from checking the power of the state.

A judge found that that there was widespread racial discrimination in the selection of juries across the state--that blacks were being systemically excluded from serving on juries. The legislature responded by talking power to truth.

Gov. Purdue signing the RJA in 2009.
Our fearless Gov, who continues to stand up to these bullies, issued the following statement. I thought it was worth reproducing in full:

“As long as I am Governor, I will fight to make sure the death penalty stays on the books in North Carolina.  But it has to be carried out fairly – free of prejudice.

Three years ago, North Carolina took steps to achieve this result by passing the Racial Justice Act.  In response to the enactment of this historic law, our State has rightfully received national acclaim for taking a positive and long overdue step to make sure racism does not infect the way the death penalty is administered.

Last year, Republicans in the General Assembly tried -- and failed -- to take North Carolina backwards by passing a bill that would have undone the Racial Justice Act. This year’s Senate Bill 416 is not a “compromise bill”; it guts the Racial Justice Act and renders it meaningless.

Several months ago, a North Carolina superior court judge ruling on a claim brought under the Racial Justice Act determined that racial discrimination occurred in death penalty trials across the State over a multi-year period.  The judge’s findings should trouble everyone who is committed to a justice system based on fairness, integrity, and equal protection under the law.  Faced with these findings, the Republican majority in the General Assembly could have tried to strengthen our efforts to fix the flaws in our system.  Instead, they chose to turn a blind eye to the problem and eviscerate the Racial Justice Act.  Willfully ignoring the pernicious effects of discrimination will not make those problems go away.

It is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”