Thursday, May 3, 2012

NC COA Crimnal Decisions, April 17, 2012


State v. Glenn.  From New Hanover County, Judge Phyllis M. Gorham. Appeal of 1st degree kidnapping and AWDWISI.

Facts, a drunk girl in Wilmington got into a random car of someone who asked if she "needed a ride." When she got in, she saw the driver naked from the waist down, with an erection. She tried to get out and he grabbed her and tried to keep her in. In the process, she was drug down the street and sustained road rash, back and neck injuries, and a permanent scar.

A line-up was given and she selected two men. One of them was defendant.

First, state entered evidence of Misty Hooper to law enforcement accusing defendant of raping her at knife point in Colorado. She was deceased and unavailable. This was violation of defendant's confrontation rights under Crawford. Her statement to the police, shortly after the alleged rape, was not a statement for emergency purposes, but was testimonial.

Second,  404(b) errors in court allowing other prior victims to testify about sexual assaults. These sexual assaults consisted of grabbing at breasts and buts. There was no attempt to restrain and it did not occur in the car.

New Trial.

State v. Jackson. From Wayne County, Judge Arnold O. Jones. Appeal of denial of Motion for Appropriate Relief and Discovery Motion.

Defendant was arrested and convicted for possession of cocaine, seized from a toilet during the execution of a search warrant. At trial, his motion to suppress evidence under Franks was denied summarily, due to failure of his lawyer to attach an affidavit. The warrant was issued on the information from a confidential informant. At trial, it was learned that the informant had never worked with police and there were questionable facts about his involvement.

Defendant subsequently filed an M.A.R. arguing his counsel was ineffective for failing to file the motion with an affidavit attached and requesting discovery to present a claim on the unreliability of the informant.

Trial court erred in summarily denying the M.A.R.  Defendant's motion adequately alleged evidence that, if true, would show his counsel was ineffective and the warrant was based on an unreliable informant. A hearing is necessary to determine those matters.


State v. Ramirez.  From Pitt County, Judge Alma Hinton. Appeal of revocation of probation.

Defendant waived his right to court appointed counsel at his first appearance, but did not check the box intending to represent himself. At the hearing, the defendant started to explain why he didn't have an attorney and the judge said, "I'm not interested." Defendant then admitted the violation and was imprisoned.

Here, defendant did not intend to proceed pro se and it was error to force him to. Where a defendant asks for time to hire an attorney but does not say he intends to proceed pro se, the court must conduct an appropriate inquiry before allowing him to proceed pro se.

New hearing
Other cases: 

State v. Barnhart. From Hoke County, Judge Douglas B. Sasser. Appeal of 1st degree burglary, larceny, and assault on a female.

Defendant challenges sufficient evidence that he was the perpetrator. No physical evidence, no confession, and no eye-witness ID.

Evidence was: defendant was seen going to a laundromat nearby an hour after the crime and he was the only person observed by the witness, who said he observed it from midnight until the time the police arrived; property stolen was later found hidden in a box in the laundromat; description was of an black male, the same height as the victim and this is not inconsistent with the defendant's appearance; and finally, defendant purchased items at a convenient store with a $50 bill and a $50 bill was stolen.

This was sufficient evidence of identity.

State v. Conley. From Cabarrus County, Judge W. Erwin Spainhour. Appeal of uttering a forged instrument and attempted obtaining property by false pretenses.

Defendant tried to cash a forged check at Suntrust. Told police that he got the money by doing "odds and ends" work for the payor. Later, told police that someone gave him the check and said they could split the proceeds if he cashed it.

Issue 1: At trial, they also entered evidence of another fraudulent check made out to defendant that was cashed at Wachovia Bank. This was admissible, relevant evidence. Under 404(b), it was similar to the charged conduct and closely related in time. It also undermined defendant's story of how he came to have the check. Further, it was relevant to intent.

Issue 2: No plain error in not instructing clearly that only the Suntrust, not the Wachovia check, formed the basis of the charge.

Issue 3: No plain error in judge answering jury question this way:

Jury Question: "The jury would like to know if the information about the check that was deposited at Wachovia was admissible (confusion about objection—sustained or overruled?) and if so, what date was that check deposited?"

Judge's Answer: "All right. A couple of things. First of all, that check, if you believe it was—if you find that there was such a check—it was not admitted into evidence, that is, the check itself was not; it was admitted into evidence that a check was deposited at Wachovia. The date of that prior check was—all we can tell you is the evidence, and we discussed this in court with the attorneys, it was prior to the alleged event at SunTrust."

Issue 4: Sufficient evidence here.  Challenged evidence that the check was "falsely made." Sufficient evidence that the check was falsely made by: (1) Bank having possession of a real check with the same number; (2) the font being different of this from other check; and (3) statement of business to bank that "that's not our check."

Judge Beasley concurred in the result.

State v. Foust. From Alamance County, Judge James E. Hardin. Appeal of rape conviction.

First, no plain error in admitting evidence of a prior violent altercation between defendant and another man. This was a violent act committed in the victim's presence and was relevant to her state of mind/non-consent. Also explained why she did not immediately call police.

Second, no preserved error in court sustaining objection to question of Burlington Police Officer who admitted Burlington PD wasn't involved in the investigation, that "So, is it safe to say you’ve taken a personal interest in the case?" (because didn't voir dire the answer).

Third, during closing, state said, without objection:

"What happened in the fall of 2008 is no different than a hunter in the field, a beast in the field sitting [sic] a prey, stalking the prey, learning the prey, and at some point in time, eventually taking what he wants, and that’s what happened here."

Court ruled that this was not "name-calling." Rather, just an analogy to a beast.  Not plain error.

Over-objection, defendant argues state commented on defendant's silence saying:

"Make no mistake, this was not two teenagers going out parking behind some area trying to
make out. This was violent. This was forcible. This was brutal. Uncontradicted, mind you, uncontradicted evidence of what he did to her. There’s been no explanation. There’s nothing saying, well, that could have been at a different time."

Held that this was not an impermissible comment on silence, but permissible pointing out that uncontradicted evidence was not rebutted.
State v. Foye. From Lenoir County, Judge Paul L. Jones. Appeal of DWI and DWLR convictions.

Defendant contends failed to prove he was actually driving his car, an essential element. Defendant's car was found at the scene of an accident. Half an hour later, defendant was found, drunk, leaning against a patrol car with an injury to his face and blood on his hands. Initially said he had been beaten up and his car had been stolen, then confessed to driving.

First, this was sufficient evidence. Corpus delecti doesn't save the defendant, as there was other corroborating evidence--the injuries to the defendant and the fact it was his car.

Second, the judge, after jury said it was deadlocked and wanted to be instructed again on reasonable doubt, gave the instruction and then said, "remember, nothing can be proved 100 percent basically, but beyond a reasonable doubt. So you have to decide for yourself what is reasonable, what makes sense.” Ruled this, in conjunction with the entire instruction, did not lower reasonable doubt.

State v. Hewson.  From New Hanover County, Judge Phyllis M. Gordon.

Defendant is in prison for first degree murder. Defendant requested for evidence to be DNA tested wanting testing independent of the SBI lab. Defendant believes proof that the victim's blood was on his pants would show that he was inside the house, not outside the house, which is relevant to heat of passion. The court found that DNA testing was not material to defendant's defense and denied the request.

No error.

State v. Long. From Brunswick County, Judge Ola M. Lewis. Appeal of probation revocation.

Defendant's probation was revoked and he was sentenced to 12 years on a number of different breaking and entering cases.

Defendant appeals challenging his original sentence, noting one of the charges was never indicted nor was an indictment waived by a bill of information. That issue is not properly before the court and the appeal is dismissed.

State v. Smalley. From Union County, Judge David Lee. Appeal of embezzlement conviction.

First, sufficient evidence of embezzlement proven where defendant had authority to write company checks and  paid herself an extra $18,000.

State v. Williams. From Mecklenburg County, Judge Hugh B. Lewis. Appeal of 1st degree murder conviction.

Defendant defended, asserting self defense.

First, defendant called his mother, who testified that defendant had a "peaceful nature." No error in allowing the state to cross her on defendant's prior robberies and prior pistol whipping of a person under 404(a)(1), including knowledge of juvenile offenses. Mother's statement opened the door by placing a pertinent trait of his character at issue.

Second, no plain error in witness referring to another person who was present during the crimes, known as "Black," as being in prison for murder.

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