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.

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