Thursday, July 5, 2012

NC Court of Appeals Criminal Decisions, July 3, 2012

Reversal.

State v. Harwood. Buncombe County. Appeal of convictions for possession of firearm by felon and possession of cocaine and marijuana.

Trial court erred in denying defendant's motion to suppress.

Anonymous tip said that Defendant would be selling marijuana to an unknown person at a convenience store in a white vehicle. Police found defendant at that convenience store and then followed him to an address. They placed the defendant on the ground and handcuffed him. Ran his warrants and arrested him on an old warrant.  Defendant Mirandized and confessed.

Defendant was seized, even though police never turned on the blue lights and pulled him over, as they followed him to a driveway, took him out of the car and put him on the ground in handcuffs. The police lacked articulable reasonable suspicion to make this seizure. This anonymous tip was not sufficiently reliable--it did not have adequate amount of significant detail and the reliability of the informant was unknown.

Further this amounted to plain error.

Other Cases.

State v. Huerta.  Guilford County. Appeal of trafficking conviction.

First, a brick and 12 small bags of suspected cocaine were bagged by police. Their containers were removed and they were all put together in 3 new bags. Defendant challenges the testimony that it was all cocaine, as it was not tested until it was mixed together. In light of the preliminary testing done at the scene (of all 13 bags) (unreliable on it's own) and the confirmatory testing of the 3 bags, no error.

Second, no error in state testifying that a gun was seized in the defendant's closet of the home. Possession of a gun is relevant to charge of possession with intent to sell, as firearms are frequently involved in the protection of the illegal drug trade.

Third, sufficient evidence of constructive possession where drugs found in defendant's shared home and additional incriminating circumstances were: defendant had an illegal .40 gun and more than $9,000 in his bedroom closet; defendant had $2,000 on his person; $50,000 in cocaine was found in the addict; and only other residents were defendant's wife and children.

State v. Morston. Hoke County. Appeal of conspiracy to commit murder, AWDWIKISI, and discharging a firearm into occupied property and sentenced to 30 years. Defendant also convicted for 1st degree murder, but does not appeal that sentence. Case had been remanded for re-sentencing in 2011.

First, trial court did not err in refusing to hear further evidence, as the remand was largely to correct errors in using the same evidence to find multiple aggravating factors.

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