Wednesday, June 27, 2012

NC COA Criminal Decisions, 6/19/2012


State v. Davis. Johnston County. 1st degree sex offense. -- Larry Davis, II.

In child sex assault case, state offered 404(b) evidence that defendant wrote a letter to an adult woman about his describing forcible anal sex with her. This was not sufficiently similar (with an adult woman versus charge of forcible anal sex with a 6 year old boy) to be admissible under 404(b).

Second, it was error, on cross of defendant, to ask about his visits to a non-testifying psychologist and asking, "Isn't it true that when you were with Milton Kraft, the MMPI results were marginally valid because you attempted to place yourself in an overly positive light by minimizing faults and denying psychological problems?" and "Does it indicate that it says, a
prominent elevation on the psychopathic deviant scale?".

It was impermissible to ask insinuating questions of supposed facts to which there is no evidence.  This was error and defendant did not open the door by mentioning, on redirect, that he was examined by Dr. Kraft.

Such errors were prejudicial. New trial.

State v. Flood. Alamance County. First degree murder. -- Lawrence Donnell Flood.

Court reversed on 404(b). Defendant was convicted for shooting a 16 year old in the back of the head during a drug deal. State offered evidence under 404(b) that, over 10 years before, defendant had killed a man he caught in bed with his girlfriend by shooting him in the back of the head. The trial court admitted it as proof of intent.

The COA held that it was not sufficiently similar to be relevant: it was 10 years prior, the defendant was the same age as the prior victim, the circumstances (drug deal / heat of passion) were different, they were in different states, the prior shooting had 2 shots, different caliber guns were used. The court also noted the weakness of the state's trial evidence and found the admission was prejudicial.

New trial.

State v. Whittington. Nash County. Appeal of trafficking convictions, for sale, delivery, and possession. -- Glenn Whittington.

First, indictments by sale and delivery were defective as it did not name who defendant sold or delivered to.

Second, it was error to admit a lab report showing it was opium, where the analyst was not present at trial. Under statute, if the state gives notice of intent to use a lab report without the analyst, the defendant must give notice of objection 15 days before trial. No evidence was presented that defendant received the lab report or waived the objection.

New trial.

Other Cases.

State v. Brown. Alamance County. Burglary and larceny. -- Marcus Brown.

First, sufficient evidence of burglary. Must prove breaking, entering, at night, of occupied dwelling house.

Issue #1 is whether it was night. Common law definition is after sunset, before sunrise "when it is so dark that a man's face cannot be identified except by artificial light or moonlight." Civil twilight began at 5:47am. Defendant could have only committed the crime between 10:00pm and 6:00am, as he was back at his girlfriend's house at 6:00am. It was a 27 mile drive from the break-in location to his girlfriend's house. Held that this was sufficient evidence to show the break-in occurred at night.

Issue #2 is identity. Defendant convicted under the doctrine of recent possession. Defendant was caught with the items within hours of the break-in. This was sufficient.

Second, no plain error in failing to instruct the jury on the elements of the doctrine of recent possession on the lesser included count of felony breaking and entering. The doctrine was explained on the other two charges. No prejudice.

State v. Braswell. Watauga County. Appeal of DWI and leaving the scene of an accident conviction. -- Chad Braswell.

First, defendant took a plea in district court to DWI and the leaving the scene was dismissed. He then appealed to superior court the DWI conviction. No indictment was issued on leaving the scene, thus no jurisdiction. As such, that count is vacated.

Second, no error in denying defendant's motion to suppress his statements under Miranda. A traffic stop does not place a person in custody for Miranda purposes. Asking a few questions and having a person conduct balancing tests is not a custodial interrogation. No error.

Third, sufficient evidence of impairment where his blood test was positive for Carisoprodol,
Meprobamape, Diazepam, Nordiazepam, and Methadon and he failed standardized field sobriety tests.

Fourth, no plain error in failing to instruct the jury that the jury had to find that the cause of impairment was the substances.

State v. Gorman. Davidson County. Appeal of probation revocation.--  Richard Gorman, Jr.

Issue was probation violation was timely filed. Because the record is not clear, it is remanded for further findings.

State v. Mills. Iredell County. Appeal of AWDWISI and robbery with a dangerous weapon. -- Kenneth Mills.

First, the deadly weapon here is a lawn chair. There was sufficient evidence for this where victim testified that he was struck by something "other than a fist" and a lawn chair was found in the grass near the driveway, that was bent and had  blood on it. That the lawn chair was a "deadly weapon" can be inferred by the seriousness of the victim's wounds.

Second, no plain error in allowing detectives to testify that the lawn chair had "blood" on it, even though no testing was done for blood.

State v. Robinson. Mecklenburg County.  Appeal of possession of cocaine possession conviction. -- Jerome Robinson, Jr.

Challenge to denial of motion to suppress. Valid pat-down search where gun seen. During patdown, officer "felt something hard between the defendant's buttocks." This gave rise to probable cause for a more intense search. It was not an impermissible strip search, where defendant was taken to the officer's car, shielded from public view, and searched by looking down pants (not making him pull his pants down).

Judge Elmore Dissents, calling this a roadside strip search.

State v. Shareef. Cumberland County. Appeal of two counts first degree murder, two counts attempted first degree murder, AWDWIKISI, assault with a deadly weapon, and two counts of felony larceny. -- Abdullah Shareef.

Defendant stole a car, ran over a man walking in the road, stopped, reversed and tried to hit him again, then got out and stabbed him in the head and face 8-10 times with a pencil.

Then, he hit drove down another person, dragging him down the street, seriously injuring him.

Defendant then drove around, terrorizing other people, running over another person and stealing his truck. Then drove the truck in to another person. Defendant eventually crashed and ran away.

Defendant asserted insanity and diminished capacity at trial.

First, sufficient evidence of premeditation and deliberation. Sufficient evidence of deliberation, despite expert testimony otherwise, where defendant targeted victims and drove them down with his car.

Second, trial court did not err in refusing to allow defendant to call deputies to describe him acting crazy while in jail. This was relevant to show he sufferred mental illness and was insane. However under 403, it was duplicative, as substantial evidence of mental illness was presented and this was 5 years after the crime.

State v. Yancey. Burke County. Appeal of motion to suppress in breaking and entering. -- Wesley Yancey.

Officer approached defendant, who was sitting on the curb. Asked his name and defendant appeared nervous. Officer patted down defendant, then asked to look in his back. Defendant said, "sure" and then he found stolen property from an breaking and entering. The officers then gave the defendant a ride, telling him he was free to leave. Officers then told him about the breaking and enterings and said if he cooperated, he would not be arrested that day, otherwise, he would. Defendant confessed.

First, defendant not in custody and no Miranda problems, even though he was 17.

Second, search of the backpack was consensual and legal.

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