Friday, March 16, 2012

NC Court of Appeals Criminal Decisions

State v. Blocker.  Sentencing issue.

At sentencing, defendant filed a motion to suppress use of a prior conviction against her, on the grounds that it violated her right to counsel. The trial court denied that motion without a hearing.

The trial judge ruled it was an impermissible Boykin-style collateral attack on the prior conviction. NC courts have ruled that you cannot collaterally attack a prior conviction on the grounds that the Boykin Inquiry was not held or recorded (where court tells the defendant they have a right to a trial, a right to remain silent, and a right to cross-examine witnesses). While Boykin cannot be challenged collaterally, a defendant may contest, under 15A-980, the use of priors on the grounds that he or she did not knowingly waive the right to counsel.

Reversed and remanded for hearings on where defendant knowingly waived her right to counsel.

State v. Collins.  State appeal of trial court order suppressing an arrest on the grounds that a check point was unlawful.

Defendant was driving towards a checkpoint. To avoid it, he turned into a residential driveway. An officer knew the residents and knew the defendant did not live there. An officer approached him, as he was knocking on the door of the home, at 3:15pm. The officer asked what he was doing, and he said he heard someone in the area was hiring and he was trying to find out if they had a job for him. As he approached the officer, the officer noted he smelled of alcohol and had red eyes. Eventually resulted in DWI charge.

Trial court threw out the case, on the grounds that the check point was unlawful, as the checkpoint was set up without written permission by the highway patrol.

COA held that the lawfulness of the checkpoint was irrelevant, as the defendant evaded the checkpoint and was stopped due to his suspicious behavior of drunkenly knocking on a random door in the middle of the day. Remanded for further hearing on whether that stop was reasonable.

State v. Cooper. Appeal of five 1st degree murder convictions.

Major issue was suppression of the defendant' confession to five murders.

First, defendant argued that police threatened to bring charges against his father unless he confessed. The trial court found that no direct threats or promises were made. These findings were sufficient so the argument is overruled.

Second, defendant argued that his Miranda right to remain silent/counsel was violated. After asserting the right to remain silent/counsel in response to warning, police may not further interrogate-- which means doing anything that is likely to elicit incriminating responses.

After invoking his rights, defendant contends that the police arrested his father and "paraded" his father in front of him, which was intended to elicit incriminating responses. The court found that it was not intended to elicit an incriminating response and, after seeing this, the defendant voluntarily reached out to police.

Final issue-- it was not prejudicial error for the judge to refuse to give the defense-requested instruction on premeditation and deliberation that it means the defendant "weighed the consequences of his action."

State v. Cornelius.  Appeal of felony murder conviction.

Defendant was tried for burglary and felony murder. He was convicted of burglary, but the jury hung on felony murder. He was retried on felony murder and the jury convicted.

Facts: Home invasion. Invaders and home owner have a gun battle. Home owner killed, defendant also shot. 

1) Suppression of Statements: defendant argues that three statements he made to police while in the hospital and on medication were involuntary. Trial court found that defendant was alert and oriented and able to concoct a story whereby he was shot, but not involved in the home invasion. These findings were not unreasonable.

2)On retrial of felony murder only, the court ruled that defendant was collaterally estopped from re-litigating the burglary for purposes of felony murder. Collateral estoppel can appropriately be applied in criminal cases in North Carolina and was done so here.

State v. Fields.  Appeal of DWI conviction.

Defendant challenges the stop for lacking reasonable suspicion. Findings of fact were that the officer followed the defendant for 3/4 of a mile. Saw defendant weave  erratically within his travel lane, "like a bowling ball". There was heavy traffic. Did not see the defendant cross the fog line or the center line.

COA found this to provide reasonable suspicion. Prior decisions say weaving within your own lane is insufficient to support reasonable suspicion. The court distinguished those decisions by noting the officer used the term "like a bowling bowl" and noting that traffic in the other lanes were taking "evasive maneuvers."

State v. Friend. Appeal of DWI conviction.

Defendant charged with DWI. Case was set in district court 11 times, with several continuances due to the unavailability of state's witnesses. The state voluntarily dismissed the case when the court denied it's motion for a continuance. Then, the state filed the same charge in a different pleading number. Judge Charles Vincent dismissed the charge. The state appealed.

First, no separation of powers problem in dismissing the charge. The State was not inappropriately avoiding the courts denial of its motion to continue by re-charging under a new number. This did not subvert the courts' ultimate authority to manage its trial calendar.

Second, this did not violate the defendant's due process or right to speedy trial. Not so, says the  court, as the new charge was filed within the 2 year statute of limitations. Further, defendant never asserted speedy trial until he was on appeal in Superior Court.

State v. Lindsey. Appeal of felony fell elude arrest and possession of drugs.

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. Rogers.  Appeal of AWDWIKISI.

First, trial committed no error in removing defendant's retained counsel, due to a conflict developed that he might become a witness. The trial lawyer personally knew both the defendant and the victim. He might have been called as a witness about their relationship and information relevant to motive. This was adequate basis for the court to remove and doesn't violate defendant's limited right to counsel of his choosing.

Second, no error in instructing the jury that the defendant held the burden of persuasion to prove automatonism.

Third, not double jeopardy to try for both AWDWIKISI and attempted murder, as they each have elements that the other doesn't.

State v. Vaughters. Appeal of sentencing.

Defendant pleaded guilty to murder, kidnapping, and robbery. He was sentenced (crime was pre-1994, so no life without parole), to "life", plus 25 years for the kidnapping, run consecutive.

Defendant challenges the kidnapping being sentenced in the aggravated range. The aggravator used was that he was armed with a deadly weapon. COA found this permissible, as it was not an element necessary to prove the kidnapping.

While the defendant used a deadly weapon in the kidnapping, it is not one of the elements. Held that a prior case, State v. Brice (which said that using a deadly weapon to do the confining precludes it's use at sentencing), was overruled by later case, State v. Ruff.

Kidnapping = “(1) confining, restraining, or removing from one place to another; (2) any person sixteen years or older; (3) without such person’s consent; (4) if such act was for the purposes of facilitating the commission of a felony.

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