Friday, February 3, 2012

COA Decisions, Jan. 17, 2012

Reversal
State v. Hammonds.  Appeal of larceny of a firearm, RDO, and assault on a government official.

After a lunch break, during voir dire, defendant reported seeing an already accepted juror having lunch with a lawyer from the DA's office. Told the court he would have struck the juror if he'd known of the relationship. The judge questioned the jurors and number 8 indicated that he had, but hadn't discussed the defendant's case. Defendant requested to strike that juror (he hadn't used 2 of his strikes) and that request was denied.

Held: Reopening voir dire/strikes is a matter within the discretion of the court. However, once the court reopens examination of a juror (by asking question), parties have an absolute right to use their strikes. Was error not to strike the juror. New trial.

State v. Hogan.  Appeal of RWDW.

Defendant was denied final argument, after the court found that he had "introduced evidence" during his cross-exam by reading aloud a witnesses prior statement to police.

Reading and questioning someone about prior statements, as long as they are related to testimony on direct, does not constitute offering evidence (unless the written statement itself is offered into evidence and provided to the jury).

State v. Matthews. Appeal of breaking and entering and larceny charges.

1st, court improperly denied last argument to defendant when he crossed an officer about the officers report, which based on the video footage of the break in, named another person as a suspect. Defendant did not enter the report into evidence and this was relevant to the officer's direct testimony about the investigation of the case. Defendant did not offer evidence and should have had last argument.


2nd, no error in admitted evidence of defendant's DNA found at the scene. State collected blood samples, but not the evidence (for example, a carton of cigarettes) that the blood was on. Defendant fails to demonstrate that there was any exculpatory value or any error in the failure to collect such evidence.

3rd, no error in submitted evidence under 404(b) about subsequent break-ins committed by the defendant.

New trial.

State v. Rico.  Appeal of MAR and guilty plea to voluntary manslaughter. Worth a read. Interesting on issue of mistake of material fact in a plea agreement.

Defendant pleaded guilty to manslaughter and admitted to one aggravating factor. Under the agreement, defendant was to receive 84 to 110 months.

The Judge accepted the plea and sentenced the defendant. He made no findings of aggravating factors. Defendant challenges the sentence, by pro se MAR, as he was sentenced in the aggravated range, but no aggravating factors were found. Court erred in denying the MAR. Court erred, even in a plea situation, in not finding aggravating factors.

Remanded for resentencing. But, there is a problem with the plea. The stipulated aggravating factor was the use of a deadly weapon, but this is inappropriate as that was necessary to prove the voluntary manslaughter (can't use in aggravation what you had to use to prove the elements of the crime).

Remanded to determine if the plea must be set aside and defendant should be re-sentenced under the plea arrangement (effectively taking away the stipulation to the aggravating factor).

Other Case
State v. Ballance. Appeal of convictions for "taking a bear with aid of bait" by placing food in area designated for bear hunting. Found the statement of charges effective and that the many types of listed illegal ways to bait a bear were not separate offenses. Second, under open fields doctrine, no search issue in the officers entering the defendant's land and observing facts/taking statements that were incriminatory.

State v. Cook. Appeal of breaking and entering and larceny after breaking and entering. At a federal government building, someone stole a gym bag and a laptop from out of the offices of an employee. Two days later, defendant was found with a fake ID badge and some goods stolen from the place. Defendant confessed to committing "several burglaries" when interrogated. A t-shirt found at the scene matched the DNA of the defendant.

First, no error in officer testifying about defendant's statement. Defendant crossed on those issued asked the detective to confirm the statements as part of this theory that the way the defendant described those burglaries does not match this burglary, and did not object when if was initially offered by the state. This invited error and waived review. Further, failure to move to suppress pre-trial waived any claims that the confession was involuntary.

Second, video of the robbery was properly authenticated. Videos can be authenticated by:

“(1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed”; “(2) proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape”; “(3) testimony that the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing”; or “(4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.”

Here, it was offered under #2 and the state had to show that the camera was properly maintaining and operating properly when the tape was made. Officer's testimony that it was a "live stream recording device" and that the video was the same as he viewed it a few days after the theft, even though he didn't testify about maintenance, was sufficient. Even if it was error, not prejudicial due to overwhelming evidence of guilt.

Third, no error in allowing jury to view stills of the video during deliberations. No abuse of discretion.

Fourth, state had adequate proof of prior out-of-state convictions for sentencing purposes. Must prove the conviction and that it is either similar to an NC offense or treated as a felony by the other state by preponderance of the evidence. DCI records are adequate. Remanded for hearing because record not clear.

State v. Kidwell.  Appeal of first degree murder conviction.

1) Discovery. Judge ordered all discovery be provided by a date certain. 5 days before trial, defendant was given 22 pages of handwritten notes of a detective. Defendant requested a continuance and that request was denied. This included new material that defendant had no opportunity to investigate. No evidence of abuse of discretion, as defendant can only point to his "hope" that it would lead to useful investigation.

2) Sufficient evidence, where, in convenience store killing, shoe prints at scene were similar to defendants, defendant's fingerprints found in the bathroom, and victim's DNA found on money and shoes found in defendant's possession.

State v. Lee.  Appeal of attempted first degree murder, RWDW, and AWDWIKISI.

1st, no fatal variance between indictment and evidence on the AWDWIKISI charge. Essential elements are assault, with a deadly weapon, with intent to kill, inflicting serious in jury, not resulting in death. Indictment must name the weapon used and state if it is inherently deadly or describe how it was used in a deadly way. State cannot later change the identity or description of the deadly weapon (if they do, it's a fatal variance).

Here, defendant used an AK-47, but the indictment says he used a handgun. This is not a material difference, as both are obviously dangerous weapons and carry the same legal significance.

2nd, no error in denying defendant's motion to remove his shackles in front of the jury. A defendant cannot be shackled in front of a jury unless there are "extraordinary instances." However, in discretion of court, can shackle to prevent escape and protect others. A full evidentiary hearing must be held if the shackling is to be allowed.

Here,  no good reason was given and the court did not follow the well-established law that he had to hold a hearing and make a determination if shackling is necessary. While error, was not "fundamentally unfair" and was therefore harmless. Court instructed the jury not to consider the restraints and, despite the shackling, was acquitted on one of the attempted murder counts.

3rd, no speedy trial violation. Case was 22 months awaiting trial. Such a delay is unusual, but must look at other factors. Here, the reason for the delay included hearings about defendant's lack of satisfaction with his lawyer and the appointment of new counsel. Also continued to undergo a psychiatric evaluation and competency hearings. State caused 10 months of delay in not calendaring a competency hearing, however the reasons are unclear. Defendant argues he was prejudiced because a witness "Sirhan" was no longer available, but no evidence in record of how this affected him. In light of the lack of prejudice and the reasonableness of at least some of the delay, no error.

4th, jury verdict was not inappropriately coerced when, at 5:30p, after 2 hours of deliberating, the judge informed the jury to call their loved ones and say they were going to be late because "we are going to stay here this evening with a view towards reaching a unanimous verdict." This was not coercive, under the totality of the circumstances.

State v. Pender.

First, no error in denying defense cause challenge of juror. The juror had read about the case in the paper and said, when asked if he could set it aside and follow the law that he "would do my best." After follow up, said, "yeah, I think I can." After cause challenge, the juror reiterated, "Again, I think I can. I believe I could put it aside." No abuse of discretion.

Second, no Batson violation where state used six strikes on black jurors. Defense made a prima facie showing, state offered its reasons: unresponsiveness, deceit, failure to make eye contact, alleged acquaintance with defendant’s former girlfriend, an extensive history of purchasing pawn tickets, and prior employment at the convenience store where the incident occurred; and trial court found that defendant did not prove evidence of clear discrimination.

The court found that, unless the prosecutor's explanation includes discriminatory intent, it "will be deemed race neutral."  No error.

Third, no error in denying motion for mistrial, even though a state witness testified to new details that were never provided to defense in discovery, despite a clear obligation on the part of the state to do so. Hide evidence? No problem. No error. Trial court properly used it's discretion to remedy the violation by offering a continuance or recess to review the discovery.

Fourth, no error in refusing to give voluntary manslaughter / imperfect self-defense instruction. Defendant failed to comply with his discovery requirement to disclose defense of self defense within 20 days after the case is set for trial. Double standard much? Further, even if they had, such error would have been harmless.

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

First, state was precluded from entering an SBI report about where a shot was fired from. The state, in questioning, mischaracterized another witnesses testimony who only heard the shots (and saw the shooter shortly before) as saying where the shots were fired from. Court struck and ordered to disregard, but did not grant a mistrial. No abuse of discretion. While the statement was misleading, it did not violate the suppression order and was properly struck.

Second, no error in witness stating where the defendant was standing on rebuttal, given that the defense did not object until the question had been asked and answered. Further, no grounds for the objection were given.

Third, state argued in closing that, despite contrary testimony, that defendant had no right to enter the home where the crime occurred. No error for the court not to have intervened, absent an objection.

State v. Spencer.  Appeal of eluding arrest and assault on a government official with a deadly weapon.

No error in failing to instruct on lesser included offense of misdemeanor assault on a government official.  During the chase, at one point, defendant drove his car at the officer, who was on foot. No basis for an instruction that the assault was not with a deadly weapon. Under these facts, the car was  deadly weapon.

Other issues dismissed to be refiled as an MAR.

State v. Surratt.  Remanded reversal from Supreme Court on remaining issues, in child sex case.

1) No plain error in court using term "victim" in front of the jury to describe state's witness.

2) Dismissal of appeal of satellite-based monitoring, as it was not properly raised.

State v. Watkins. Appeal of burglary, robbery, and kidnapping convictions.

First, setting aside burglary conviction. Defendant knocked out window with a shotgun, heard noises inside, and then fled the scene. For burglary conviction, must show breaking and entering. Defendant did not enter residence, so no burglary. Should have been convicted of lesser included offense of felony breaking or entering, where break alone is sufficient.

Second, sufficient evidence of common law robbery where defendant put gun on victim and made him drive him somewhere. Sufficient evidence of robbery, even though he never parted the victim from his car.

Third, not plain error to allow in-court ID, where out of court ID was a show-up with the defendant surrounded by officers.


















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