Monday, May 21, 2012

NC COA Criminal Decisions, 5/1/2012

State v. Adams. Wake County, Judge Michael O'Foghluda. Appeal of two counts burning personal property and one count of felony breaking and entering.

404(b): State put in evidence of two out-of-state break-ins to victim's homes. The only evidence linking the defendant, her ex-husband, was cell phone records showing he was in the area at the time.

To be admissible, the acts must contain similarities that support the "reasonable inference that the same person committed both the earlier and the later acts." There must be a demonstrable nexus between the defendant and the act sought be introduced against him. Here, the cell phone records were "substantial evidence" (such that a reasonable mind might accept as adequate to support a conclusion." that the defendant committed the prior crime.

Ed. note: This decision is abhorrent. They used the out-of-town break in to prove the in-town break in, and allowed it to come in because it was similar. The only evidence linking defendant to the out-of-town break in was that his cell phone hit a tower in the area. What "reasonable mind" would accept that naked fact alone as adequate to support the conclusion that he committed the out-of-town break-in. Apparently, the NC Court of Appeals.

State v. Fowler. Mecklenburg County, Judge Forrest D. Bridges.

Appeal of denial of motion to suppress.

Defendant showed up at a meet to sell drugs arranged by an informant. The informant didn't appear, so the defendant left. Police stopped defendant for going 45 in a 35. Defendant didn't have a driver's license, but produced an ID card. The officer arrested defendant for DWLR. The officer asked for permission to search and the defendant said, "Go ahead." The officer found some marijuana in an ashtray.  The officer searched the defendant and found nothing. He then took him behind a school, placed him in the police car,  took off the defendant's pants, and found 3 grams of crack in the fly area of the defendant's boxers.

Held: this was not an "unreasonable and intrusive public strip search."

Under Battle, strip searches must meet a higher level of scrutiny. (probable cause plus exigent circumstances). This was a strip search, even though officer testified the boxers were not removed.

First, probable cause existed from: (1) informant that set up the meet; (2) search that found marijuana in car.

Second, exigent circumstances existed. The defendant had prior encounters with law enforcement and had been arrested before. The officer could reasonable expect that the defendant would attempt to rid himself of any evidence before being put in intake. Sure, there was a police station right down the block, but no evidence that it was open at 11:00pm or the officer could have conducted a more private search there. 

State v. Jones. Carteret County, Judge Kenneth F. Crow.

Appeal of 2d degree murder conviction.

In July 2009, defendant waived counsel and represented himself pro se. The case was tried before a jury in August and resulted in a mistrial.

In January 2010, defendant stated he again wished to represent himself. McNeil was appointed standby counsel, then substituted in March with Paramore due to health issues. On March 16, 2010, defendant requested that Paramore serve as his attorney of record, rather than standby.

In June 2010, defendant filed a pro se motion to disqualify Paramore, for not pursuing misconduct claims. Paramore informed the court that he would not pursue these issues, as they have no merit. Paramore was removed and Gerrans was substituted.

On July 14, 2010, Gerrans requested to be appointed as standby counsel, due to conflict with the defendant. In November 2010, defendant again asserted his desire to represent himself. A competency exam was held and he was found competent. Defendant was tried again, pro se, and convicted of 2d murder and sentenced to 25 years.

First: no error in court's refusal to instruct counsel to follow defendant's wishes regarding the misconduct claims.

Defense attorneys generally make tactical decisions but, where impasse occurs, defendant gets to decide tactical decisions. This was not a tactical decision. Defendant wanted the attorney to pursue claims that had no merit. Defendants cannot make their attorney's file frivolous motions or assert theories that lack any basis in fact.

Second: no error where defendant was not informed of his right to control tactical decisions, in making his choice to waive counsel.

State v. Laurean. Wayne County, Judge W. Osmond Smith. Murder conviction.

1) No error in failing to submit second degree murder as lesser included. Defendant argues that, since no evidence was presented on events leading up to the killing, the jury should have been instructed on 2d murder. Lessers only must be presented when affirmative evidence is presented supporting them. State here presented evidence of first, an no contrary evidence was presented. As such, no lesser.

2) No error in excluding specific instances of conduct bearing on victim's character for truthfulness.

Victim alleged defendant raped her. State offered this as the motive for the killing. The defense wanted to offer that, immediately prior to the rape allegation, defendant imposed military discipline on the victim, giving a motive to falsely accuse of rape. Court found this was inadmissible under 404(b).

Whether the allegation of rape was ground in fact or false was not before the jury. As such, this was irrelevant.

State v. Stowes.  Durham County, Judge Paul C. Ridgeway. Appeal of robbery with a dangerous weapon, possession of firearm by felon, and carrying a concealed weapon.

Defendant charged 2with robbing Fashion Avenue, a clothing store, of money and inventory.

Victim picked defendant out of a lineup with "75 percent" certainty.

First, defendant challenges the lineup as impermissibly suggestive and violative of the statutory Eyewitness ID Reform Act (EIRA).

The investigating detective was in the room during the lineup. She didn't make any comments, however, or identify the defendant. This was not impermissively suggestive.


No timely motion was made bast on the EIRA, thus no error.

State v. Watkins. Graham County, Judge Alan Z. Thornburg. Appeal of motion to suppress.

Police received anonymous tip about a drug trafficking car, described as a mid-sized purple car with a Georgia license plate. The car changed lanes without indicating. On seeing the cops, a purple Chevy slowed down and stayed below the speed limit. Ran his plate and found it belonged to a person with warrants. They could tell the driver was not the owner. The driver appeared "really nervous." The police pulled him over. At the stop, the driver got out of the car and approached the police. Driver said he didn't have a license.

Checked passengers of car. None was the owner with warrants. Conducted a consent pat down and found a marijuana pipe. 5 minutes later, the drug dogs came and alerted.  Found 100s of pills. Defendant stated he was driving to exchange the pills for $900 and some marijuana.

Defendant indicted for trafficking. After losing a motion to suppress, the defendant was sentenced to more than 7 years.

Held: Search was lawful.

Stop valid. Failure to signal when changing lanes gives reasonable suspicion to stop if there is heavy traffic. Here, there was not heavy traffic. However, in combination with the tip and the defendant's reducing speed upon seeing police and frequent glances in the rear view mirror, and that the car was registered to another person, gave reasonable suspicion.

Search valid. Held it as a valid search incident to arrest, as defendant was not arrested until after the car was searched. Here, defendant had drugs on him. Reasonable to believe would find more evidence of that crime in the car (not the situation where defendant was arrested for traffic offense, then searched). Further, the dog sniff (and other circumstances) provided independent probable cause.













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