Thursday, September 20, 2012

NC COA Criminal Decisions, Sept. 18, 2012

Just One!

State v. Perry. Appeal of possession of firearm by felon and habitual felony.

Police executed a search warrant in an apartment and found numerous people inside and a shotgun in a closet and a pistol in a dresser. Defendant was sitting in a car outside. They brought him in, Mirandized him, strip searched him, and questioned him. He acknowledged that the apartment was his parents, but said he didn't know where the guns came from. He also said "they were all looking at them" in the parking lot. He had seen others playing with the gun and had seen one of the others bring it into the house. He said the shotgun had been there for a long time and that it used to be in the other apartment. Defendant acknowledged that he had touched and played with the guns, but denied owning them.

During jury deliberations, the jury requested the definition of possession and a "list of criteria." The jury sent out highlighted instructions and asked, first, if the defendant had to have it on the day of arrest and if "playing with it" counts as possession. The Judge responded:

[T]he bailiff has handed me back the copy of the jury instructions that I provided to you folks that you all done some marking and writing on page number three. I have reviewed what you have handed back, particularly the – I’m going to address it I guess in two parts. The first part is the highlighted language. A person has actual possession of a firearm and the highlighted language person has constructive possession of a firearm if the person does not have it on them [sic]. And then there appears to be some question or language that reads day of arrest or can previous days be considered.

In my discretion I’m unable to determine exactly what it is that you’re asking for, looking at the form of the question or the writing that you handed back.

So I’m going to charge you that you are to apply your common understandings from your everyday use of the words that are contained within the jury instructions and the law that I’ve charged you, and apply that to the evidence that has been presented.

With respect to the question that’s on the bottom of the page, does playing with constitute power and intent to control disposition.

In my discretion, I’m going to charge you that you have heard the evidence in this case and you’ve heard the evidence and you’ve heard the law, and it is once again your duty as a jury to answer the question that’s been proposed based on the evidence and the law that I’ve provided for you.

That is my instructions to you. I’m going to give this back to the bailiff, ask you to return to the jury room and resume your deliberations, once you’re all present.

Judge Gessner instructed on both actual and constructive possession, even though the state only argued constructive possession. There was no evidence of actual possession, but no evidence of constructive possession. The court erred in instructing on constructive possession. Further, the state only argued constructive possession and told the jury not to consider actual possession, leading to confusion. Failure of the court to hold further inquiry after the jury's questions likely affected the finding of guilt.

Plain error. New trial.

Friday, September 7, 2012

NC COA Criminal Decisions, September 4, 2012

State v. Derrick Allen. State appeal of dismissal.

Defendant was charged with 1st degree murder of a child. Defendant stated that the child became unresponsive during a bath; during autopsy, some abrasions to the vaginal area were found, and some hemorrhaging of the brain. The medical examiner stated the cause of death was shaken baby syndrome.

SBI Jennifer Elwell analyzed some of the child's clothes and found found blood in preliminary testing, but confirmatory testing should the tests were negatives. Elwell left the confirmatory testing out of her report. Mr. Allen pleaded guilty in 1999, but was allowed to take his plea back later because of this hiding of evidence by the SBI.

Subsequently, in 2010, his new lawyer made additional discovery requests. Turns out, the state had failed to disclose that the child's mother had failed a polygraph and all physical samples from the child had been destroyed.

Judge Hudson ordered that the state provide all discovery by 12/1/2010. 8 days later, the state provided additional SBI discovery. Judge Hudson then dismissed the case, due to failure to provide exculpatory discovery in a timely manner.

First, under 15A-954(a)(4), where a defendant's constitutional rights have been flagrantly violated and there is irreparable prejudice, the case should be dismissed.

The court found that, while the state acted very shady, the material was still provided in meaningful time for trial, thus no Brady/constitutional violation. Further, the remedy was too drastic for the violation.

State v. Brown. Appeal of probation revocation.

Defendant was placed on probation, with condition that the probation was to be completed in Virginia. Because defendant never paid the $180 fee to transfer to Virginia, probation was never transferred and he was never supervised in Virginia. Revoked as an absconder.

No error, even though defendant didn't receive a "written statement" of probation, as required by 15A-1343(c). This is not a defense where defendant failed to report for initial processing.

State v. Lewis. Appeal of improper storage of firearm and involuntary manslaughter.

Defendant's three year old son shot himself while defendant was at work. The defendant's son found the gun and it was loaded and had no safety mechanism. The handgun trigger weight had been lessened. No evidence was presented as to where the child found the gun.

First, sufficient evidence of "improper storage." Only contested element is if defendant kept the gun "in a manner that the [defendant] knew or should have known that an unsupervised minor would be able to gain access to the firearm." Even though the state offered no evidence of where the gun was kept, the fact that a 3-year old found it provides reasonable inference that it was improperly stored (the gun was usually kept on top of an entertainment center, out of reach, but it must have been elsewhere for the 3-year-old to find it).

Second, sufficient evidence of manslaughter. Involuntary manslaughter is the unintentional killing caused by a culpably negligent act or omission or by unlawful act not amounting to the felony. Here, proof of the improper storage (misdemeanor) was sufficient to prove the manslaughter.

Third, no prejudicial error in allowing state to admit photo of all defendant's weapons, after the state had removed them from their cases and piled them all up.

Wednesday, September 5, 2012