Thursday, June 28, 2012

NC Supreme Court Criminal Decisions, June 14, 2012

State v. Barrow. Affirmed and digged.

COA blog post here.

State v. Beckelheimer.

COA blog post here.  COA found it was error to allow 404(b) testimony in sex offense case of prior sexual conduct between defendant (at age 15) and another boy (age 11). "Sexual exploration with a child in the same general age range is quite a different thing than a sexual  act perpetrated by force by a 27 year old man upon an 11 year old child."

SC reversed finding that these acts were sufficiently similar and temporally close. Victims ages were close, both occurred in defendant's bedroom where video games were played, both involved similar progression of sex acts. This fits for modus operandi.

State v. Bradshaw. Appeal of unpublished COA decision.

Trial court denied defendant's motion to dismiss trafficking in cocaine and possession of firearm by felon charges, on the issue of constructive possession.

Held: Sufficient evidence where the cocaine and rifle were found in a bedroom that also contained pictures, a father's day card, a cable bill, a receipt, and a pay-stub linking the room to the defendant. Several individuals were found inside the 3 bedroom house.

Hudson dissents.

State v. King. Upheld COA decision (blog post here).


COA upheld trial court grant of defendant's "motion to suppress evidence of repressed memory, recovered memory, traumatic amnesia, dissociative amnesia, psychogenic amnesia, and other synonymous terminology."

No error in suppressing such testimony under the old Rule 702 (for more on this, see my recent post on amendments to rule 702), Howerton, and Rule 403.


Court goes on to state that it is not making a categorical rule that repressed memory evidence cannot be used, nor that expert testimony is always necessary to put on such evidence.

State v. Moore.

Issue: a State's witness testified that: "A. Yes. I went to [defendant‟s] residence . . . and I took him into custody. Once he was in custody, I read him his Miranda Rights, but he refused to talk about the case at that time." There was no objection.

Held: This was error, but not plain error. It is error to comment on silence. However, since there was no objection, it only requires a new trial if it is "something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done." his is not.

State v. Otto

COA reversed the trial court's denial of a motion to suppress. Divided panel of the COA found that the Officer stopped defendant leaving a Duck's Unlimited Banquet, because he had "heard there would be alcohol there." Defendant did not violate any traffic laws, but was weaving within her own lane (she did not cross any lines). Held: No reasonable suspicion for the stop. Judgment vacated and all evidence suppressed.

Reversed, finding reasonable suspicion for the stop.  Totality was that the driver was weaving within a lane "continuously and constantly" over 3/4 of a mile at 11:00pm on a Friday not. This is not a single  weave like State v. Peele or 3 weaves over 1 1/2 miles like State v. Fields. Reasonable suspicion existed.


State v. Salinas. COA blog post here.

COA remanded a suppression for a stop, based on everyone saying repeatedly at hearing that probable cause, rather than reasonable suspicion, was necessary for the stop. Supreme Court affirms.

State v. Sweat

COA blog post here

Issue: did COA err in holding that state's evidence satisfied corpus delecti?

No. Only evidence for 2 of the sex acts was defendant's confession. Where there is no evidence of injury or loss, under corpus delecti, there must be "strong corroboration of essential facts and circumstances embraced in the defendant‟s confession." Here, there was, because defendant had "ample time to commit the crime," confessed to details only knowable by the perpetrator (but, of course, not corroborated by anything else...), defendant committed other, similar crimes, and the victim described the incidents in extrajudicial statements that were considered under rule 104(a), but not admitted as evidence.

Issue 2: did COA err in ordering new trial on jury instruction issue?

Yes. No error in including fellatio in the instructions on all four counts, as evidence of this was presetned.


State v. Towe.

COA blog post here. COA found that it was plain error to allow a expert to testify in a sex abuse case that abuse occurred, in the absence of any physical evidence.

SC Affirmed, but noted that the COA used the wrong plain error standard that "that “it [was] highly plausible that the jury could have reached a different result” absent the expert testimony."  The correct standard, recently announced in State v. Lawrence, is if "the jury probably would have returned a different result."

State v. Williams.  COA found that stop and search were legal.

Issue: did the officer have reasonable suspicion to prolong the stop for the canine search? Here, the totality of circumstances gave continued reasonable suspicion.

In Myles, after learning the license/registration checked, the cause for the original stop was at an end. The officer remained because the occupants were nervous and gave conflicting stories about when their rental car was due. The Court held that this was not reasonable suspicion to prolong the stop.

Here, the driver and defendant gave conflicting stories about their origin and destination, said they were cousins then said they just say that because they have a close relationship, one said the Defendant owned the truck and defendant said it was her friends, and the traffic was interstate. These combined factors give rise to reasonable suspicion to prolong the stop.


One interesting sidenote, is that this case affirms the Felana/Myles line of cases, which had never been tested in the S.C.

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