Thursday, August 23, 2012

NC COA Criminal Decisions, August 21, 2012


State v. Davis Appeal of 1st degree sex offense and indecent liberties.

First, trial court erred in admitting, under 404(b), defendant's fictional writings (journal of short stories) that included a story of forcible, anal rape of a female adult. This was not proper evidence of a "common scheme" as found by the trial court. They are not sufficiently similar--one is a writing about anal rape of an adult female, the facts here involved anal rape of a male child.

Second, trial court also erred in allowing state to cross defendant on results of psychological evaluation that were not admitted, that described defendant as a "psychopathic deviant." This was not proper impeachment material--it was a prior statement of the defendant and it was not admitted into evidence. The DA injected insinuating questions for the purpose of prejudicing the defendant.

New trial.

State v. Frederick.  Appeal of trafficking of cocaine, possession of firearm by felon, and maintaining a vehicle.

Police stop a Z-71, driven by another person. Four people were in the truck, defendant in the passenger seat. At a license checkpoint, the driver had an expired license. Police talked to defendant and the driver, who gave conflicting stories. They brought a K-9 over and it alerted. Found drugs under the driver's seat, and brick of cocaine and a handgun on the side of the road. Defendant admitted possession to some marijuana found near the cocaine, then recanted. The brick was tested and worth $40,000. The driver testified against defendant as part of a deal. Defendant proceeded pro se on a motion to suppress and lost, then had counsel at trial.

Defendant alleges court failed to advise him of possible punishment before allowing him to proceed pro se during his motion to suppress. This was a critical stage and defendant had 6th Amendment rights. Only advisement was judge saying: "It's a class C felony, you could go to prison for a long, long time." and later that "It's a mandatory active prison sentence."  15A-1242(3) requires that the court adequately advise a defendant of the range of permissible punishments. This was not adequately specific. Such error was prejudicial. New trial.

Other Cases.

State v. Harris and Whitaker.  Appeal of robbery with a dangerous weapon and conspiracy.

First, challenge to substantial evidence not preserved.

Second, no plain error in failing to instruct jury on identity.

Third, no plain error in not instructing on lesser of "aggravated common law robbery." Held that there was no such offense and they were not the same. No error.

State v. Miles. Appeal of 1st degree murder from Wilkes County.

The victim owed the defendant $41,000 dollars. The victim went missing. At the time, an RV with lights on the top and bottom was scene leaving the victim's house. Around the same time, the defendant's wife owned an RV with lights like that, that was recovered 2 years later in Georgia, with a bleach stain and a bloodstain not matching the victim inside. Later, the body was found behind another house. Victim was shot in the back of the head. Defendant left a threatening message right before the killing on the victim's answering machine. Calls from the defendant's phone hit towers in the area of the killing. Defendant told police he was in Durham during the killing. Also, a snitch testified.

First, this was substantial evidence.

Second, defendant was not allowed to question the victim's wife about the victim's infidelity and to put forward a theory that she killed her husband. Defendant failed to preserve the constitutional issues. No error in court ruling this as irrelevant, as there was no reasonable possibility that a jury could conclude the wife killed her husband.

Third, no error in failing to submit the lesser of 2d murder.

Calabria dissents, on grounds that there was insufficient evidence.

State v. Osterhoudt.  State appeal of granted motion to suppress.

Trooper pulled over a car at 1:00am on Fifth Street (near bars) in Greenville, after seeing the defendant make a "wide right turn," crossing the double yellow line. Defendant then pulled halfway into a parking spot. He was pulled over and eventually given a DWI.

The District Court suppressed the stop, holding that it is not a violation to cross a double yellow separating a turn lane from a straight travel lane at an intersection when making a right turn when no traffic was present.

Overturned, finding that defendant violated NCGS 20-146(d)--which the court is now deciding includes a rule that you must maintain your own lane. Also NCGS 20-153(a) which says “a right
turn shall be made as close as practicable to the right-hand curb or edge of the roadway.”

Although the driving was "normal," there was a traffic violation, so the stop was valid.

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