Friday, August 10, 2012

NC COA Criminal Decisions, August 7, 2012

Court  Guts Felana Line of Cases

State v. Sellars.  State appeal of granted motion to suppress. -- William Sellars, Jr.

Police stopped defendant for DWI. Upon stop, it was clear he was sober. Defendant was nervous. After giving him a ticket, the police asked if he would consent to a drug-dog sniff. Defendant refused and police brought over the drug dog anyway. It alerted and drugs were found. Trial court suppressed based on prolonging the stop; the state appealed.

Held: any prolongment of the stop for the sniff was de minimis.

First, under the Felana/Myles line of cases, any prolongment without reasonable suspicion is an unconstitutional detention.  Under the Brimmer case, he court found that prolongment for a "very short period of time" for a drug dog sniff is de minimis.

Held, Felana did not consider the de minimis analysis--so prolongment is OK, even without any reasonable suspicion, as long as it's not that long. In other words, the police can legally detain you without any reasonable suspicion, as long as it is brief.

Other Cases.

State v. Anderson. Lincoln County.  Appeal of assault with a deadly weapon inflicting serious injury. -- Jimreco Anderson.

During the second day of trial, defendant (who was free on bond) did not appear and the case proceeded. The state rested and a defense request for a continuance, to get the defendant present to testify, was denied. Jury returned a verdict. At sentencing, defendant requested a mistrial and presented a doctor's note showing the defendant was, in fact, in the hospital. However, the note lacked a date/time of admission.

First, a defendant has a right to be present at all parts of a trial. In a non-capital case, such right is waiveable. A defendant's failure to appear waives this right. The defendant has the burden of showing that such absence was involuntary, rather than a waiver. No abuse of discretion here in court finding that defendant didn't prove he was in the hospital during the entire second day.

State v. Avent. Nash County. Appeal of first degree murder conviction. -- Dewayne Avent.

First, no error when trial court allowed state to amend indictment from Dec. 28 to Dec. 27. Defendant alleged that time was of the essence and he had relied on an alibi defense, making such change material and making the original date mistake an unamendable defective indictment.

Under the law, if "time is of the essence," then the amendment is not permitted by N.C.G.S. 15A-923(e), because it constitutes a substantial alteration of the indictment. Here, time was not of the essence.

At trial, defendant had an alibi for the 12/27. Then the court allowed a change to 12/28. Nonetheless, the defendant's alibi covered the new period, thus he was not affected. Further, there was no surprise, as all other state's discovery listed the murder as occurring on 12/27.

Second, no error in refusing to compel disclosure of a confidential informant. Because the informant was not an actual participant in the crime, nor does it contradict any material facts in the case, no error in denying disclosure.

Third, no error in allowing the state to impeach it's own witness (who on the stand said the defendant wasn't there) with a statement given to police that he was there and killed the victim. Either party may prove up a prior inconsistent statement on a non-collateral matter--if there was not a "mere subterfuge on the part of the state," as the state was genuinely surprised by the witnesses denial.

State v. Boyd. Appeal of 1st degree burglary, second degree kidnapping, sexual battery and habitual felon, on remand from the Supreme Court. -- Bryant Boyd.

Found it was plain error for the court to instruct on 2d kidnapping on a theory of removal, because it was unsupported by the evidence. Defendant was indicted on kidnapping on a theory of confining and/or restraining. Judge instructed also on removing. Being forced to sit on the defendant's lap does not constitute removal for kidnapping purposes. This was still plain error, even though court instructed on multiple theories of kidnapping.

Stroud dissents.

State v. Braswell. Appeal of DWI and leaving the scene of a collision. -- Chad Braswell.

A white GMC with front end damage struck another car and fled the scene on Hwy 105 near Boon. Five minutes later, an Officer saw a white GMC with front end damage on Hwy 105. The officer pulled the defendant over. The defendant said he "Didn't think he had damaged the other vehicle." Failed field sobriety test, but was negative on the alka sensor. Arrested. Blood test was positive for benzodiazapines. Defendant was never irandized.

First, no error in failing to suppress the statements and field sobriety test. No Miranda, as you are not in custody simply from a traffic stop/questioning.

State v. Cox.  On remand from the NC Supreme Court. -- Ronald Cox.

Remanded for reconsideration in light of State v. Sweat. COA previously reversed conviction on corpus delecti grounds (that the defendant's confession was the sole evidence that a crime had occurred.) Sweat said that a defendant's confession alone could prove guilt if "the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness.” (rather than the old rule, that require actual independent evidence of the crime). Here, the confession had no content except that defendant owned the gun. There was no corroborating circumstances or evidence of this.

State v. Cornell.  Appeal of resist, delay, obstruct a police office. -- Jorge Cornell.

An officer testified that the Defendant was seen, at a bluegrass festival, yelling and flashing Latin Kings gang signs towards different gang members. An officer went to talk to the group and defendant stepped between the officer and the other folks and told the officer it was OK, they were signalling at him and there would be no problems. The officer told him to remove and he refused, and was arrested.

First, this was sufficient evidence of RDO. While a citizen cannot be arrested for RDO when they merely "remonstrating with an officer ... or criticizing or questioning an officer while he is performing his duty when done in an orderly manner," here defendant did more than that--he refused to comply with officer orders to move.

Second, the 1st amendment issue was not preserved.

Third, trial court refused to instruct the jury with language from NC case that "merely remonstrating with an officer in behalf of another, or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstruction or delaying an officer in the performance of his duties." There was not sufficient evidence to support this instruction.


State v. Foster.  Appeal of denial of post-conviction motion. -- Harold Foster, Jr.

In  murder conviction (Alford plea), defendant requested that the evidence in the case be tested for DNA, submitting an affidavit of his innocence. State argued that defendant was charges as an accessory before the fact and offered as some evidence an exhibit showing the prosecutor's outline for the trial of a co-defendant that included the defendant's testimony as an aider and abettor.  Court denied the the motion on the grounds that the testing could not exonerate the defendant.

COA upheld. Found that it was error to consider the prosecutor's outline as hearsay, but such error was harmless.

State v. Joe.  On remand from the NC Supreme Court. -- Robert Joe.

Previously held that COA had no jurisdiction to hear state appeal of suppression, on grounds that state's comment amounted to dismissal in open court. That was overturned by the NCSC. It's back on remand to consider the motion to suppress.

Rules that the officer did not have probable cause to order the defendant to stop. Although the defendant threw the drugs after the officer attempted illegal arrest, "when a suspect 'discards property as the product of [] illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of privacy with respect to it.”

As such, the property was not abandoned and the seizure was unlawful.

State v. Martin.  Appeal of 1st degree sex offense, 2d degree sex offense, and 1d kidnapping.

Victim testified that defendant, her separated husband, broke into her house and raped her and choked her. Defendant testified that it was consensual and afterwards, he came clean and admitted infidelity and his wife made this up. Defendant admitted to choking his wife after she threatened to make these false reports.

First, no error in refusing to allow defendant's expert to testify. Defendant proffered a criminal profiler that could testify that the victim's version of events led to "investigative red flags" and errors made by the police. Court did not abuse discretion by excluding this as improper expert testimony on credibility.

Second, double jeopardy violated by sentencing defendant for kidnapping and sex assault, as the acts of restraint were not "independent" of the sex offense and were no greater than that required to commit the sex offense.


Third, no error to refuse to instruct only on assault on a female as a lesser included offense of rape. Assault on a female is not a lesser included offense of rape (must show victim is female for assault on a female, but not for rape).


State v. Mason.-- Tyrece Mason.


Defendant robbed an owner of a Chinese restaurant. His friend held a gun on the owner and defendant reached in his pocket and grabbed his cell phone. Police arrived and defendant was arrested.

First, no fatal variance  between name of the victim in the indictment and the evidence at trial (You Xing Lin v. Lin You Xing). This was adequate to give notice.

Second, sufficient evidence of "taking" for a robbery, here, where defendant took the victim's cell phone out of his pocket and then cast it away. When something is forcibly removed, even for a shot amount of time, it constitutes a taking. 

Third, sufficient evidence.

Fourth, no error in allowing the officer to testify about corroborative statements of the victim made to him at the time, even though they were made through an interpreter and the interpreter wasn't available for confrontation. No confrontation problem, since the victim actually testified at trial.

Fifth, no error in denying the "mere presence" instruction, since the evidence showed the defendant with his hand in the victim's pocket.

Sixth, it was error for judge to send back exhibits, over objection of defendant -- N.C.G.S. 15A-1233(b), but this was harmless.

State v. O'Connor. State appeal of granted motion to suppress. -- Alejandro O'Connor.

Defendant challenged the traffic stop.  Trial court suppressed but didn't make findings of fact. Remanded for findings of fact.


State v. Smith. State appeal of granted motion to suppress. -- Curtis Smith, Jr.

Held: a drug dog's positive alert at the front side driver's door of a motor vehicle does not give probable cause to conduct a warrantless search of a recent passenger.

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