Friday, February 17, 2012

Court of Appeals Criminal Decisions, 2/7/2012

State v. Cox. Appeal of possession of firearm by felon and misdemeanor marijuana. -- Ronald Cox.

A car avoids a checkpoint and pulls into a driveway. The driver skedaddles and leaves defendant and two other men in the car. As they approach, defendant is found breaking up and rolling marijuana into a blunt in his lap. Police also found a .45 revolver 10-12 feet from the open door of the car, in the path that the fleeing driver ran. A 2nd .45 revolver was found at the feet of one of the other passengers. No one claimed the guns.

The officers said everyone would get charged if no one claimed the stuff. Eventually, defendant stated the revolver belonged to him.

Held: Insufficient evidence of possession of the firearm. Can only show possession in these circumstances (where gun not on defendant's person or in his exclusive control) if there are "other incriminating circumstances." Under corpus delecti, the state could not use defendant's alleged statement to the officer as the sole evidence that the crime occurred, unless it is strongly corroborated. Here, the confession contained no details and was insufficient to nakedly support his possession.

State v. Valerie King. Appeal of order setting aside a plea disposition. -- Valerie King.

Defendant was charged with trafficking and other offenses. Defendant took an Alford plea to misdemeanor possession, in return for a dismissal of other charges. The state also agreed to return money and jewelry seized during a prior search. Later it turned out the $6,150 of the money had been seized and forfeited to the DEA. On motion, the court ordered $873 that was still held by police to be given to the defendant. Later, the court found the state had breached it's agreement in the plea and found that, since the agreement could not be complied with, it would be rescinded.

Some of the charges against defendant were dismissed on double jeopardy ground, but she was eventually tried and convicted of trafficking and was sentenced to 225 months and fined $500,000.

First, Superior Court erred in setting aside plea when it was unable to provide specific performance of the state in paying defendant owed moneys. Rescission was not an appropriate remedy here, as it could not repair the harm to defendant. Reversed and plea reinstated.

Second, a remedy was available. Money is fungible and no requirement that the exact same funds be given to a defendant. This is not a unique item. Ordered the state to return the $6,150 to the defendant from it's coffers.

State v. Privette and Smith. Appeal of extortion, conspiracy, possession of stolen goods and habitual felon. -- Antwan Privette and Deangelo Smith.

First, no error in joining co-defendants for trial. No Bruton issue (of co-defendant's statements being used in violation of confrontation clause). Defendant only complains about state using his own statements against him, which would come in anyway.

Second, no error in putting in evidence related to history, organization, and practices of the Blood Nation gang, along with pictures of the defendant's tattoos. "Assuming the trial court erred..." such error was harmless due to overwhelming evidence of guilt.

Third, no plain error in state's closing argument, talking about defendant's neighborhood and then saying, "If you don’t send a clear message that they’re guilty and this is not okay whether it’s in southeast Raleigh, whether it’s in your backyard, in your community -- there are going to be more guns in the faces of people like Cynthia Perry who’s your neighbor. And there are going to be more young men like Gary Lynn who could have been somebody."

While improper, is not an "extreme impropriety" warranting relief.

Fourth, insufficient evidence of possession of stolen goods, where defendant never had actual possession and only "incriminating circumstance" is defendant's gang affiliation with other persons who did possess the stolen goods and that he went along while someone else went and pawned the goods.

Fifth, trial court erred in putting on evidence about a private conversation between defendant and his wife. Defendant's threats in that conversation were not relevant to any other matter (the state argued they were relevant to show his authority over someone else).

New trial for Prevatte, but not Smith.

State v. Reeves. Appeal of DWI and reckless driving conviction. -- Douglas Reeves.

In District Court, state dismissed the reckless driving and defendant was convicted of DWI. On appeal in Superior Court, defendant was convicted on both counts. Superior Court arrested judgment on the reckless driving, noting that it was used to enhance the DWI, as an aggravating factor.

1st, sufficient evidence of DWI. An officer arrived on the scene and found the defendant sitting in the driver's side of a vehicle in a ditch. He was drunk and confessed to having driven the car into the ditch. This is not a corpus delecti issue, as his confession was not the sole evidence of his guilt. The fact he was in the driver's seat, drunk, in a car in a ditch, is circumstantial evidence that supports the truth of the confession.

2nd, Superior Court lacked jurisdiction to try him for reckless driving, since that count was dismissed in District Court and not appealed. If the dismissal is not part of a plea agreement, it cannot come back in Superior Court.

3rd, for factors in aggravation of a DWI, state must give 10 days notice. The state failed to give such notice hear. Sentencing vacated and remanded for re-sentencing.

State v. Reynolds.  Appeal of felony breaking and entering and felony larceny. -- William Reynolds.

Defendant entered a plea, in exchange for the dismissal of other charges. The plea agreement stated that "Defendant will be sentenced to 135 months in the DOC." He was sentenced as habitual felon to 135 to 171 months and awarded $3,015 in restitution. Defendant filed a pro se MAR, challenging the restitution and that court erred in not informing defendant of the maximum.

Held: Trial court erred in accepting his plea as he was not informed of the correct maximum sentence. Trial court told him the max was 168, but the max was 171. Under N.C.G.S. 15A-1022(a)(6), a superior court may not accept a plea unless the judge personally informs the defendant (among other things) of the maximum sentence. This was not harmless, it was an additional 3 months, which is prejudicial.

New trial.

Other Cases. 

State v. Adams. Appeal of trafficking convictions. -- Norman Adams.

Facts: Taking the facts in the light most favorable to Defendant, Shaw called Defendant repeatedly requesting cocaine. Defendant told him he would “call a guy.” Defendant called Mr. Armstrong to try and get cocaine. Defendant then drove to Mr. Armstrong’s house after he did not answer his phone. The next day, Defendant picked up Mr. Armstrong and drove him to a location previously arranged to meet Shaw

1) No error in refusal to give entrapment instruction. To get an instruction, there must be substantial evidence that (1) law enforcement officers or their agents engaged in acts of persuasion, trickery or fraud to induce the defendant to commit a crime, and (2) the criminal design originated in the minds of those officials, rather than with the defendant. The facts (above) show defendant was predisposed to commit the crime and admitted on cross he had been the middleman before.

2) Sufficient evidence of construction possession of more than 28 grams of cocaine (for trafficking). While defendant did not have exclusive possession of the cocaine, he was driving the car and knew it was there. This was sufficient for the jury to infer he constructively possessed the cocaine.

State v. Barr. Appeal of accessing a government computer to obtain property or services by false pretenses, N.C.G.S. 14-454.1(a)(2) and (b). -- Betty Barr.

Defendant accessed the DMV system, with authorization, regularly as a clerk for a car company. He registered three titles with an odd designation for a company, earning $59 in fees. The facts are vague on this, but it appears the state theorized that he did so for some nefarious purpose.

1st) Sufficient evidence. Defendant did access the computer for the purposes of obtaining services--the service of obtaining a title. Sufficient evidence for jury to infer willfulness. Defendant had some evidence that the DMV instructed another agency to use the code he was using to achieve the transaction. Other witnesses testified that Defendant was the source of this code, not the DMV. Jury may believe whoever they like.

2nd) Judgement should be arrested on the (b) violation (a class H), as it was not intended that someone could be convicted under (a)(2) (access for obtaining services, a class F felony) and in the (b) catchall for the same action.

3rd) No error in judge refusing to instruct on the defense of government authority. This instruction would have been that defendant could not be guilty, as he was "entrapped" by relying on government authority (here, the statements of the DMV he alleged in his testimony).

“[a] criminal defendant may assert an entrapment-by-estoppel defense when the government affirmatively assures him that certain conduct is lawful, the defendant thereafter engages in the conduct in reasonable reliance on those assurances, and a criminal prosecution based upon the conduct ensues.” (quotation omitted). “In order to assert an entrapment-by-estoppel defense, [the defendant] must do more than merely show that the government made vague or even contradictory statements. Rather, he must demonstrate that there was active misleading in the sense that the government actually told him that the proscribed conduct was permissible."

Person he was relying on was a licensed private contractor, not a government agent. Thus, no instruction.

State v. Burrow. Appeal of trafficking in Oxycodone. -- Jonathan Burrow.

First, it was plain error to admit the SBI report of an analyst who did not testify into evidence, as violative of the confrontation clause. A detective read the report into the record, finding that the substance was Oxycontin. This violated the confrontation clause, as the detective had no independent expert basis for making the statements. This was prejudicial, as no other evidence was presented showing the substance was a controlled substance. Without the report, there would have been a non-suit.  New trial.

Judge Hunter dissents. Said it was harmless, as defendant elicited the same info on cross-examination.

State v. Chapman. State appeal of order dismissing two counts of first degree murder. The state, however, failed to challenge the relief that was given under habeas corpus, leaving the COA without jurisdiction in the matter. Dismissed without considering merits. -- Gregory Chapman.

State v. Ellerbee.  Appeal of 1st degree burglary and AISBI. -- Gregory Ellerbe.

Defendant charged for breaking into a man's home, dragging him into the street and beating him and threatening him over owed money. The victim recognized the defendant's voice, but couldn't see his face. Two other witnesses saw the assault and ID'd the defendant.

1st: no plain error in putting on, as 404(b) evidence, information about a prior assault committed by defendant against the victim's father. Wasn't prejudicial due to overwhelming evidence of guilt.

2nd: while it was error to allow state to impeach a defense witness with 25 year old manslaughter conviction, it was harmless as defendant due to overwhelming evidence of guilt.

State v. Holder. Appeal of DWI and felony elude arrest. -- Terry Holder.

Defendant, drunk, led police on the following chase: "During the pursuit, defendant operated his vehicle in excess of 100 miles per hour, drove at times without headlights, and ran stop signs. Defendant also passed a gasoline tanker truck and “cut off” the tanker by making a sharp turn just in front of the tanker. Defendant was finally stopped when he ran over “stop sticks” deployed in front of his vehicle by another officer. The stop sticks punctured defendant’s tires, causing his vehicle to slow down and run into a ditch. Defendant was subsequently tested for alcohol use and found to have a blood alcohol level of .11."

Defendant challenges conviction, arguing counsel was ineffective in conceding his guilt without permission, under Harbison. Defense counsel put on record that during his closing he might conceded guilt to something other than felony flee/elude arrest, that they'd talked about it, and the defendant agreed. Judge addressed the defendant on this and defendant agreed that they had discussed it, but it was not clear what charges defendant was conceding. At closing, defense argued they were only guilty of misdemeanor flee and elude arrest.

Here, record sufficient to show knowing consent.

State v. Michael Ray King. Appeal of habitual felon conviction. -- Michael Ray King.

Remanded for rehearing due to inadequate record.

State v. Shaw.  Appeal of robbery with a dangerous weapon, possession of firearm by felon, and habitual violent felon. Sentenced to life without possibility of parole. -- Xavier Shaw.

Defendant requested not to be present at trial and, over objection, the court forced him to be present. Defendant argues error and that he had a right to waive his presence. Case law only allows that, in a non-capital case, a defendant may waive his right to appear. Nothing suggests that it is error to require the defendant to be present.

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