Thursday, July 26, 2012

NC Court of Appeals, Criminal Decisions, July 17, 2012

Reversals.
 
State v. Askew.  Pasquotank County. Appeal of indecent liberties probation revocation.

Defendant was charged for "failing to have an approved residence plan." Defendant was never released from prison on other charges, so the violation was only failing to submit his residence plans, not actually failing to live someone appropriate. Under DCC policy, a defendant must submit residence within 24 hours. They judge found the defendant in a "catch-22," but nonetheless found him in willful violation.

Here, defendant's probation was revoked for reasons beyond his control. Violation was not willful. Reversed.

State v. Talbert. Buncombe County. Appeal of revocation of probation.

Placed on probation.Similar issue as in Askew, in that defendant didn't have a residence lined up from jail. Found this not to be a willful violation of the condition of "residing at a residence approved by probation officer."

Other Cases.

State v. Bell.  Person County. Appeal of three counts 2d kidnapping, two counts robbery with a dangerous weapon, four counts of 1d degree sex offense, and one count of 1d burglary (a home invasion assault).

Defendant challenges search. Court held that the search was consensual.

Facts: Based on what happened, the victim's believed the intruder was a former neighbor, Mr. Bell. They tracked Bell down and asked for consent to search his room, which he agreed to. In his room, they found a camera that was similar to one taken at the scene, as well as other evidence. Once the police found those items, defendant withdrew his consent. The police left, called the DA, then re-entered and recovered the items they had found prior to defendant's revocation of consent. They did not search any further--until they got a warrant.

Trial court found that the search was consensual, but did not make a specific finding that the consent was voluntary. This was not an error, because defendant never argued the consent was involuntary, only that he didn't consent.

State v. Brunson. Cumberland County. Appeal of attempted statutory rape, 8 counts of sexual activity by a substitute parent, 7 counts of indecent liberties, 4 counts of crime against nature, and 4 counts of sex offense, and 1 count of attempted statutory rape.

First, defendant failed to preserve error in the court's refusal to conduct an in camera review of DSS materials.

Second, no IAC claim where defendant fired his attorneys and represented himself.

Third, no error in failing to have a timely probable cause hearing.

Fourth, not plain error for victim's mother to testify that a physician diagnosed her daughter with joint disease due to trauma from the injury.

Fifth, no error in quashing subpoena of a judge who heard a restraining order case and found defendant had committed 1st degree rape (rather than the actual charge).

State v. Collins. Cumberland County. Appeal of guilty plea to assault on a person who is handicapped.

First, plea was supported by a factual basis--statement of facts was that defendant took his 80 year old mother's crutch and beat her with it, while telling her he was going to kill her. This was sufficient basis to show the victim was handicapped and the defendant used deadly force.

Second, the plea was informed. A condition of the plea was that defendant complete 2 years of misdemeanor probation. If he failed to do so, the felony would not be PJC'd and he would be sentenced as a felon. Plea explained that clearly.

Third, indictment valid, even though it does not specifically identify the victim's handicap.

State v. Harris. Forsyth County. Appeal of rape of a child, sex offense, kidnapping, and indecent liberties convictions.

First, no plain error in failure to intervene ex mero motu when prosecutor said, in closing, that "There are only two people in this courtroom as we sit here today that actually know what happened between the two people, and that’s [Zora] and the defendant.” Held that this was a comment on the "limits of the physical evidence," not an inappropriate comment on defendant's silence.

Second, DNA expert testified that defendant's DNA was recovered during rape kit. A trainee, Jill Applebee, actually conducted the tests under his supervision. Because he was directly supervising this, no Melendez-Diaz/confrontation problems of putting the results on through him.

State v. Hunt. Randolph County. Previously, the COA reversed on grounds that state failed to prove victim was mentally disabled (for sex offense charge) and the S.C. reversed. This is opinion on the remaining issues.

First, no IAC for trial counsel opened the door to prior sex offense pending charges by asking defendant, on direct, if he had ever done such a thing before (then he got crossed on the pending charges). Other instances were already in the record and don't think that this one additional one led to harmful error.

Second, arrest judgment on crime against nature conviction under double jeopardy. Crime against nature is a lesser included of sex offense (even when basis is mentally disabled victim).

Third, no error in failing to grant mistrial. A counselor testified on voir dire offered by the state that the defendant's son called and asked, after he had testified, "what would happen to someone who lied in court." Afterwards, defense stated it would not be calling the son, because of fear that the defense counsel would be called as a witness if he did so. The court did not hold a hearing. No abuse of discretion.

Stroud: Dissents. Court should have held a hearing on the mistrial/conflict issue.

State v. Kelly.  Union County. Appeal of second degree murder conviction.

First, sufficient evidence where baby was found, with umbilical cord attached, in the burn pile in a house out in the woods; defendant denied being the mother (DNA said otherwise), then mother confessed to having the baby and leaving it beside the road in hopes someone would find it (she later recanted it and said the baby's father took the baby).

Second, IAC claim dismissed without prejudice due to undeveloped record.

Third, no error on failure of court to instruct on jury nullification. In fact, courts have a duty to instruct the opposite. "If defendant’s argument were to be adopted in our criminal justice system, it would lead to chaos and an absence of justice in North Carolina."

Appellate Counsel Admonished [Yikes!]. "Counsel should be zealous advocates for their clients. However, this zealous advocacy does have limits. Appellate counsel for defendant has exceeded these limits in the instant case. She vigorously attacked the professionalism and ethics of the prosecutors for failing to believe defendant’s recantation of her confession and proceeding with the murder prosecution in this case. Some of the language used by counsel to describe the conduct of the prosecutor was: (1) “failed to investigate the truth[;]” (2) “distorting the truth[;]” (3) “misled and misrepresented facts[;]” (4) “subverted the truth by presenting false evidence in the form of [defendant’s] confession[;]” (5) “suppressed the truth by failing to disclose potentially truth-enhancing evidence[;]” and (6)  “dominated the fact-finding process all led directly to [defendant’s] conviction for a crime she did not commit.” Appellate counsel for defendant went on to assert that “[a] prosecutor should be  professionally disciplined for proceeding with prosecution if a fair-minded person could not reasonably conclude, on the facts known to the prosecutor, that the accused is guilty beyond a  reasonable doubt.”

We hold these comments to be unsupported by the record in this case and highly inappropriate and urge counsel to refrain from making such comments in the future."

State v. Mather. Moore County. Appeal of carrying a concealed handgun outside permit (while drinking) conviction.

Defendant argues that there was a fatal variance between the charging document and the evidence at trial.

Defendant was charged with carrying a concealed gun. Nothing was mentioned in the indictment about alcohol. The statute says that carrying a gun with a permit is an exception to the law. Exceptions generally are not elements of the crime, especially those that exempt a certain class of persons. While state still holds ultimate burden of proof, it is not an essential element that must be alleged.

State v. Robinson. Buncombe County. Appeal of 1st degree murder conviction.

First, court denied counsel request that the defendant be evaluated for competency.  Under statute, anyone can raise competency and the court must hold a hearing. The method of inquiry is largely within the discretion of the judge. Burden rests on defense to show mental incapacity. Defendant had substantial prior evaluations, all finding him competent, but saying that he was on the border and, if his status worsened, he could easily become incompetent. Defense counsel reported that his status had worsened in his conversation. HELD: Court erred in refusing to continue the proceedings to allow defendant to be evaluated. Remedy would be judgment vacated and remand for court to determine if a retrospective competency hearing can be held and, if so, hold one--BUT, Dr. Corvin, defense expert, testified at trial that he was not concerned about competency and defense did not question him further, so no relief.

Second, defendant had valid waiver of Miranda before making statements. Defendant argues that he was not informed that he would be provided with a lawyer, even though he could not pay for one. However, he was provided a written form with this and signed. Despite his mental problems, waiver found valid. Also, there was overwhelming evidence of guilt.

State v. Rollins.  Henderson County. Appeal of misdemeanor breaking and entering, first degree kidnapping, second degree rape, and resisting an officer.

HELD: Trial court violated defendant's 6th Amendment right to a public trial was violated when the trial court closed the courtroom during the victim's testimony.

6th Amendment gives right to public trial. This right is limited and can give way to other interests, such as the interest of inhibiting disclosure of sensitive information. Four part test:
  1. “The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,”
  2. “The closure must be no broader than necessary to protect that interest,” 
  3. “The trial court must consider reasonable alternatives to closing the proceeding,” and 
  4. “It must make findings adequate to support the closure.
Trial court made no findings. The absence of findings entirely is error. Remanded for hearing on the propriety of the closure and for further findings on whether the closure was appropriate.

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