Tuesday, June 26, 2012

NC Court of Appeals Criminal Decisions, 6/5/2012


State v. Ross.  Cleveland County. Attempted bribery of a juror, felony obstruction of justice, and habitual felony.

First, habitiual felon count was for firearm by felon, but that was not charged. Since the underlying charge was not charged but rather crimes committed after the habitual felony indictment were issued, the court lacked jurisdiction to enter verdict on habitual felon. That count is vacated.

Second, trial court erred in sentencing attempted bribing a juror as a Class F felony. It is a Class G felony.
State v. Sharpless.  New Hanover County. Appeal of 1st degree murder, robbery, burglary, and AWDWIKISI.

Court erred in admitting an anonymous 911 phone call that tipped the police that the 3rd victim in the hospital (the defendant) should be treated as a suspect involved in a drug robbery.

This was hearsay. While the state may put in hearsay "against a defendant may become admissible to explain or rebut other evidence put in by the defendant himself," such right is not unlimited.

State argues defendant opened the door, by asking an officer about an initial BOLO taken off the 911 calls describing the suspect as a black male in a red hoodie. While defendant may have opened the door to further evidence regarding his involvement in the robbery, he did not open it to improper hearsay statements.

New Trial.
Other Cases 

State v. Carver. Gaston County. 1st Degree Murder. LWOP.

Victim found dead beside her car on the shore of the Catawba River. Defendant and his cousin were fishing close-by at the time the victim was discovered and near the time she was strangled to death. DNA in the car matched Carver and his cousin's profile. Carver denied ever touching the car. Defendant found guilty of 1st degree murder. Defendant described the victim as a "little thing," even though he maintained he'd never seen her.

First, this was sufficient evidence.

Second, during deliberations, the jury asked, "Are we still to consider acting in concert?" They were not instructed on this. Instead of saying "no," the court, without object, just re-read the instructions. This was not error and not preserved.

Hunter dissents, saying there was not sufficient evidence. Cannot reasonably infer guilt from the circumstantial evidence of touch DNA, which is less reliable, on the outside of the car. His cousin's touch DNA was found inside the car. Wasn't found on any ligatures.

State v. Glenn. Rowan County. Possession of Cocaine / Habitual Felon. 7 year sentence.

Detective went to defendant's home to serve a warrant for his arrest. He followed the defendant into the home after defendant answered the door. Defendant looked like he was concealing something. Arrested him. Threatened him with pepper spray to open his mouth and then retrieved bags of drugs out of his mouth, with 0.03g of cocaine inside.

First, no fatal variance in indictment. Indictment said .1g of cocaine, truth is .03g. Waived at trial, but still we find it has no merit.

Second, defendant complained about counsel to judge and judge did not hold a hearing on this. No showing of actual conflict of interest. The complaints were about counsel trying to get him to take a plea, working on 50 hours on the case, and poor cross examination. These statements of general dissatisfaction do not arise to basis for substitute counsel. Some complaints about communication, but nothing to show the conflict rendered counsel ineffective.

Third, court denied defense motion for a mistrial when three LEOs walked through the jury assembly room in the presence of jurors and no inquiry for prejudice was held. This was not sufficient to assume the jury was prejudiced.

State v. Herman. Catawba County. Sex offender statute.

Defendant challenged portions of the sex offender statute--claiming that the prohibition of being on unlawful premises 14-208.18(a)(2) was vague and violated his 1st amendment right to free exercise of religion and association.

The state appealed, but the court found no jurisdiction as the indictment failed to allege all elements necessary -- that defendant knowingly was on school property after being adjudicated a sex offender.

State v. Hunt. Cabarrus County. Appeal of permanent "no contact order" in rape case involving his daughter.

First, no NC constitutional problem with no-contact order. The NC Constitution, Art. XI, Sec. I, states that: " The following punishments only shall be known to the laws of this State: death, imprisonment, fines, suspension of a jail or prison term with or without conditions, restitution, community service, restraints on liberty, work programs, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State."

Held that this was a civil remedy, not punishment, so inapplicable.

Second, no due process violation, even though defendant was not provided with advance notice that the state would seek this at sentencing. No notice is included in statute. By the charge, defendant was notified of all potential criminal and civil penalties.

State v. Jones.  Mecklenburg County.

COA previously ordered a new trial, finding plain error in admitting lab report without testimony of an analyst, under Crawford. On cert., state noted that it had provided intent to produce the report to the defendant under 90-95(g). The court allowed the amendment.

First, Under 90-95(g), if the state notifies the defendant 15 days before that it intends to use the report under 90-95(g) without calling the analyst and there is no timely written objection, it is admissible. That happened here, so no error in admitting it.

Second, no IAC in failure to file motion to suppress the cocaine, found in search incident to arrest. Defendant ran/struggled when confronted by police. Gave authority to arrest and right to search incident to arrest. No error.

State v. Lineberger. Forsyth County. Appeal of lifetime Satellite Based Monitoring (SBM) order.

Defendant took an Alford plea to indecent liberties and possession of firearm by felon and was sentenced to 3-4 years. Later, he was set for satellite-based monitoring hearing for life.

First, defendant gave oral notice of appeal of this issue. That is insufficient for an SBM order. Must give written notice. (Court grants cert anyway).

Second, appellate attorney files Anders brief saying he can find no good issue. Court agrees.

State v. Manning. Pitt county. Appeal of lifetime Satelite Based Monitoring (SBM) order.

Defendant was determined as a recidivist under 14-208.40(a) and sentenced to lifetime monitoring.

First, defendant challenges DOC's determination that he was a recidivist (submitted) as depriving him of due process because it did not list both prior offenses. The wording "you meet the criteria of recidivist under 14-208.40(a)" gave him adequate notice for due process purposes.

Second, SBM does not unconstitutionally infringe on his right to travel. Government may interfere with right to travel if "necessary to promote a compelling government interest." This is.

State v. Miles. Greene County. AWDWISI and possession of a weapon by a prisoner. Attacked a guard with a razor blade doing serious injury.

First, no error in requiring defendant to wear prison garb and shackles throughout the trial. Defendant was under high security control for demonstrated assaultive behavior. He was on the highest level.
Prison garb was not adequately preserved.

Chaining generally violates due process. However,  “[a] trial judge may order a defendant or witness subjected to physical restraint in the courtroom when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant’s escape, or provide for the safety of persons.” Here, a hearing was held and such findings were made.

Second, no Blakely error in failing to submit to the jury the sentencing point of crime committed during incarceration. Defendant testified that he was incarcerated. Such admission allowed addition of the point without submitting it to the jury.

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