Wednesday, March 7, 2012

NC COA Criminal Decisions (Feb. 21, 2012)

State v. Alshaif. Appeal of MAR on plead to AWDWISI.

Issue: Attorney did not inform legal permanent resident of the immigration consequences of his guilty plea. Under Padilla v. Kentucky (2010), the U.S. Supreme Court found that it was IAC not to inform clients of the collateral immigration consequences of conviction. Only issue here is if it applies retroactively.

First, Padilla is a new rule, not dictated by existing precedent. Under Teague, as a "new rule," it is not retroactive unless it is a (1) "watershed rule of criminal procedure" implicating fundamental fairness or (2) a substantive rule. The rule is procedure and, as a "narrow exception, not a watershed rule.

No right to relief, retroactively, under Padilla.

State v. Gettys. Appeal of first degree murder.

Defendant found guilty of 1st degree murder under a felony murder theory, based on robbery.

First, no plain error that statements of defendant's girlfriend were admitted that she didn't press him for details of what happened that night because she didn't want "to get him pissed off and beat her ass."

Second, there was sufficient evidence of robbery to support the conviction.  Evidence here is that defendant and victim were in an altercation on the side of the road and defendant beat the victim to death with a rock. The victim's wallet was missing, but defendant denied taking the wallet. Later, defendant gave his girlfriend $298 and the victim had cashed a work check for $290 earlier that day. A snitch testified that the defendant owed his girlfriend money and blew his work check on drugs, then had gone to ask to borrow money from the victim. This, together, was sufficient evidence of robbery.

Third, no error in refusing to instruct on voluntary manslaughter. This was harmless, as defendant was convicted of on theory of felony murder, so voluntary instruction couldn't have made a difference.

Fourth, no plain error in judge giving Allen charge to jury. Jury sent out a note that they were hung on the second day. They told the judge they were 11 to 1. Judge gave the Allen instructions based on 15A-1235(b). (1) No problem to do this after inquiring of the split. (2) No problem in giving this variation:

"Now, members of the jury, your foreperson informs me that you have been unable to agree upon a verdict. You are reminded that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women in an effort to reconcile your differences if you can without the surrender of conscientious convictions. No juror should surrender an honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

I‖m going to ask you to resume your deliberations and continue your efforts to reach a verdict. I ask you to think about the evidence again, to see what conclusions you reach from it, your analysis of it, to share that, to articulate that, and to see if you can do so——if you can reach a verdict with this guidance I just gave you."

(Major difference: statutes says to "deliberate with a view to reaching an agreement" whereas judge said "duty to do whatever you can to reach a verdict.")


State v. Hemphill. Appeal of felony breaking and entering, possession of burglary tools, resisting an officer, and habitual felon.

Brief facts. Officer finds defendant in closed car lot. Defendant runs from cop and is apprehended. Defendant then gives a pre-Miranda confesses he was there to break-in. A screwdriver was found on him. Later, officer's find a sledgehammer and a hole in the wall of the office.

First, the stop/patdown was legal. Reasonable suspicion existed to detain defendant when: (1) officer saw defendant matching a general description about suspicious activity in the closed lot at 10:00pm and (2) when defendant saw the officer, he ran.

Second, the confession must be suppressed as violation of Miranda. Officer grabbed the defendant, cuffed him on the ground, held him there with a taser, and began asking him questions about why he ran without giving Miranda warnings. The only questions that can be asked alongside a Terry stop are officer safety questions (i.e. do you have a gun?). This is an unwarned custodial interrogation. Confession suppressed. However, no prejudice, as Defendant later gave a second statement, after being given warnings. [no analysis of issue if 1st confession tainted/coerced 2nd confession].

Third,  indictment of RDO was not invalid. The indictment did not say how defendant resisted, it just said that he "unlawfully resisted, delayed, or obstructed a public officer in discharge of his duty by failing to obey the officer's command." This was sufficient.

Judge Hunter concurred, saying he didn't think defendant was in custody when interrogated.

State v. Lopez. Appeal of trafficking in cocaine conviction more than 400 grams.

An officer got a tip that defendant was driving with cocaine in the car. He pulled defendant for going 70 in a 60. Defendant said he was traveling to a construction job and did not have a valid NC driver's license. Defendant was neatly dressed, inconsistent with a construction worker. He became nervous during the stop. In the back of the car, in plain view, was a open bag with a yellow box of clear plastic wrap, consistent with the packaging of drugs. The driver then consented to a search of the car. Found drugs in the air intake compartment. The stop lasted a total of 12-13 minutes.

Held: Admission of the evidence was not plain error. Officer had reasonable suspicion to stop the defendant and, under State v. Jackson (2009), there was additional, reasonable suspicion to request to search. Defendant was visibly nervous, story was inconsistent, and saw plastic wrap consistent with drug packaging. Finally, consent to search the vehicle did include under the hood. Defendant could have objected when the officer asked him to open the hood.

Beasley reluctantly concurs citing the unpublished decision of State v. Burrell.

State v. Lowery.  1st degree murder appeal.

1st, no error in refusing to allow defendant to call a doctor to say defendant told him he confessed only because one of the officers threatened him with the death penalty. This was inadmissible hearsay. Not a statement made for the purposes of a medical diagnoses because they were not intended for "pertinent" to treatment or diagnosis.

2nd, no error in refusing to allow defense counsel to ask informants about conversations they had with their attorneys, relating to concessions for charges. These were protected by attorney-client privilege. Not waived by testifying.

3rd, not a violation of the 8th amendment to sentence a 16 year old to LWOP for a homicide.

4th, no error in failing to remove jury member for cause challenge, where she knew the DA personally and the DA was her son's soccer coach. Defendant did not renew the challenge after the jury returned it's verdict, thus it was waived.

State v. Schiro. Accessory after the fact to 1st degree murder appeal.

1st, consent search of defendant's car was constitutional. Defendant did not withdraw his consent when he complained to one officer than another officer was "tearing up my trunk" during the search. Officers did not exceed the scope of the search by removing the interior carpeted panels of the trunk, which were loose, while conducting the search.

2nd, sufficient evidence where defendant found in possession of the murder weapon and witness testified that he gave the defendant the gun and told him it was involved in the murder and asked him to hold it and give it back to him later, to destroy.

3rd, no error in admitting under 404(b) other thefts and break-ins, including some committed after the offense. These were admissible to show that defendant and the murderer were together and had opportunities to discuss the gun and if it was used in a murder.

4th, no error in instructing jury they could convict if found as accessory to murder under either felony murder or premeditation and deliberation, without distinguishing the two (despite defendant's claims that this created potential for non-unanimous verdict).

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