Thursday, May 24, 2012

NC Court of Appeals Criminal Decisions, May 15, 2012

Reversal.

State v. Tyson.  Durham County, Judge Paul C. Ridgeway.


Defendant requested a copy of the transcript from his mistrial, before being retried. Judge refused to provide it, setting the re-trial to begin the next day. Defendant objected.


Trial court erred in denying the defendant his transcript prior to retrial. Violates his constitutional right to present a complete defense. Under Equal Protection, mus provide indigent prisoners with the basic tools of an adequate defense. Transcript must be provided if it is necessary to preparing an effective defense.


New Trial.

Other cases. 

State v. Houseright. Forsyth County, Judge A. Moses Massey.

Appeal of statutory sex offense conviction, 1st degree rape, 2 counts statutory sex offense, and 6 counts of statutory rape.

First, sufficient evidence of sex offense where victim said, before the sex occurred, that defendant digitally penetrated her.

Second, no 404(b) error in allowing testimony that defendant had intercourse previously with a 13 or 14 year old, when he was 20 years old. Relevant to intent and plan.

Third, no plain error in court failing to intervene ex mero motu when a witness mentioned that another girl, "Cammy," was pregnant from the defendant.

State v. Rollins. Mecklenburg County, Judge Calvin E. Murphy.

Appeal of 2nd degree murder conviction. Defendant, who had no license, crashed and killed the victim during a high-speed chase with police.


First, sufficient evidence of malice in auto crash case where: defendant had no license, defendant had prior citations for NOL, defendant and friends had shoplifted from a shoe store, police officer tried to stop them and they ran (they stopped once, so defendant could change seats with the driver and drive during the chase), drove on wrong side of yellow line to pass cars, sped between 60 and 70mph in a 45, used turning lane to passed cars, drove through a corn field to avoid a stop sign, accelerated to 80mph, turned into oncoming traffic and had the wreck, killing an 84-year old widow driving to pick up a prescription from a pharmacy.

Second, no error under 404(b) to present: (1) shoplifting-- part of the chain of circumstances leading up to the event necessary to provide a "complete picture to the jury"; (2) prior citations from NOL-- relevant to prove malice; (3) defendant elbowed a girl in the car to escape the wreckage -- conduct after the accident is relevant to malice, as he continued trying to escape after the wreck occurred.

Third, not plain error for officers to testify that defendant committed offenses of reckless driving and felony speeding to elude arrest. Generally, officers cannot testify to final conclusions of guilt, but this was just using shorthand to describe the situation, directly based on their observations. Also, harmless error.

Fourth, no error in instruction to jury that

The Pattern says: "All twelve of you must agree to your verdict. You cannot reach a verdict by majority vote. When you have agreed upon a unanimous verdict(s) (as to each charge) your foreperson should so indicate on the verdict form(s)."

The Judge said: "You must be unanimous in your decision. In other words, all twelve jurors must agree. When you have agreed upon a unanimous verdict, your foreperson may so indicate on the verdict form that will be provided to you."

This did not impermissibly indicate to the jury that it must render a verdict.

State v. Williamson.  Forsyth County, Judge William Z. Wood, Jr.

Defendant appeals conviction for RWDW and dismissal of his MAR.

Defendant convicted for RWDW, largely on his own confession. Later, filed an MAR asserting new evidence that the state had obtained a statement from his co-defendant that the gun was not operational (a defense) and the defendant didn't read the statement. Turns out, the statement was placed in his courthouse mailbox a month before trial.

First, no error in failing to instruct on common law robbery, as no evidence was presented that the gun was inoperable and state doesn't have to specifically present evidence of operability. Weapon used in a robbery is assumed operable.

Second, MAR issue dismissed, because the denial of the MAR was not included in the record on appeal.

Steelman concurs, Wood made an oral order. He would affirm this.

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