Wednesday, October 31, 2012

NC COA Opinions, 10/16/2012

State v. Black. Lincoln County. Appeal of sex offense convictions on multiple victims.

First, plain error to allow expert to vouch for one of the victims statements. One of victim's therapists improperly vouched for the victim. Said, "I do not think that she is lying. I think it truly, truly happened." Further, said that the victim's actions were "consistent with someone who had been sexually abused." While error, was not prejudicial due to overwhelming evidence of guilt.

Second, testimony of DSS social worked that they made a finding of "sex abuse" was properly admitted. This was elicited on redirect and was directly responsive to defense cross-examination. Defense opened the door.

Third, no error in allowing state to prove up prior inconsistent statements of defendant that she had told other things about one of the victims of a sexual nature. This was not a collateral matter.

State v. Graham.  Cabarrus County. Appeal of indecent liberties, assault, and sex offense.

Two boys spent the night with their basketball coach, before a game the next day. Around midnight, one of the boys returned home, banging on the door, in nothing but his underwear and reported that defendant had touched his private area. The other boy later stated he too had been assaulted.

First, no plain error in allowing ER doctor to "vouch" for credibility of one boy, as these statements were elicited on cross.

Second, defendant's confession was not involuntary. Defendant voluntarily went with police to the station and was not given Miranda warning. He was informed of his right to leave. Was interviewed and confessed. Police statements that they would help him "deal with his problem" was not an improper inducement to confess, as there was no direct promise of benefit. Further, statements of the officers asking if he believed in got and false statements that defendant had failed a polygraph and DNA test did not render the confession involuntary.

Third, no error in admission, on cross, of defendant's prior statement that he had been investigated for touching five boys in Michigan.

State v. Miles.  Vance County. Appeal of discharging a firearm into occupied dwelling and possession of firearm by felon.

Defendant, in a shoot out with another person, turned and fired at the other guy's grandma and bullets went into the house.


Sufficient evidence that the house was occupied. The grandma and others were on the front porch and ran inside to escape the gunshots. There was no one inside when the firearm was discharged. However, a house is occupied if someone is on the front porch, since it was covered by the same roof as the house.


State v. Okwara.  Mecklenburg County. Appeal of contempt of court.

Defendant, a court appointed defense attorney, was defending a rape case before Judge Robert C. Ervin. After an in-camera hearing, defendant was allowed to question alleged rape victim about whether she had engaged in consensual sex with defendant before.

Then, on cross, the attorney asked if she told the prosecutor she had been raped by her cousin at age 15.

Court held her in contempt for going beyond his order.

First, holds that this question did violate the rape shield statute (Rule 412). Must petition in camera to ask any questions about prior sexual behavior of a victim.

Second, this was at least gross negligence, so it counts as "willful" under the contempt statute.

State v. Pasour.  Gaston County. Appeal of denial of motion to suppress.

Police received a call that defendant was growing marijuana. Police went to the residence on knocked. Received no response, so they went to the back yard. Found marijuana plants.

Held: Illegal search, evidence should have been suppressed. No justification for officers to enter back yard when no one answered the knock. Police may not enter the back yard unless there is reason to believe that they will find the homeowner there. Defendant had a reasonable expectation of privacy in the area of the curtilage of this home.

Reversed.

State v. Patterson. Alamance County. Appeal of failure to report change of address for sex offender.

During check, officer went to defendant's listed address and someone told him he no longer lived there. Defendant sentenced to 2 years and ordered to pay $1,954 in court costs. Judge stated that "I have no discretion but to charge court costs and I'll impose that as a civil judgment."

Held: Court erred in failing to exercise discretion on court costs. Court does have discretion on court costs and must exercise it, one way or the other.

Remanded for re-sentecing on court costs.

State v. Poole.  Carteret County. Appeal of possession of controlled substance in a jail and habitual felony.

State lab person testified based off another agents report and was not involved in the testing. No objection was made at trial.  While this was error, defendant confessed to possessing the cocaine. This was sufficient evidence to satisfy the burden of the defense. Error is deemed harmless.

State v. Wilkerson. Hoke County. Appeal of felony larceny after breaking and entering and felony possession of stolen goods.

Defendant's car (with two men inside) seen in the area of a breaking and entering. The next day, police went to defendant's house and he consented to a search of the car, which revealed computer items from the breaking and entering.  Nokia custodian of records also testified about calls made from defendant's phone, including cell tower locations. At time of B&E, his phone made calls withing 1.5 miles of the residence. Also, admitted a text message from the sent folder saying ,"I got a 64 inch flat Samsumg" the day of the crime.

First, the text message was adequately authenticated. Do not have to show that the defendant sent the message, as long as can reliably show the text came from the particular phone and there was circumstantial evidence to suggest he was the sender.

Friday, October 12, 2012

NC Supreme Court, October 5, 2012

Just one criminal decision in this batch.

State v. Oates, Sampson County. Appeal of unanimous decision of Court of Appeals.

COA found that the state's oral motion to appeal suppression, made in open court after the grant of the motion, but 3 months prior to the issuing of a written decision, was untimely.

Under Rule 4, the relevant time period for filing notice of appeal begins when the judgment is rendered and ends 14 days after the entry of judgment. The state's appeal is timely.

Vacated and remanded to COA for decision on the merits.

Friday, October 5, 2012

NC Court of Appeals Criminal Decisions, Oct. 2, 2012

State v. Barnett. Gaston County. Appeal of failure to notify sheriff of change of address within three days for a sex offender, a class F felony.

The indictment failed to allege an essential element of the charge -- that defendant was a person required to register. The indictment was fatal and the trial court lacked jurisdiction. Judgment vacated.

State v. Cameron. Durham County. Appeal of felony flee/elude arrest with a motor vehicle.

Defendant fled from an officer, after a traffic stop. Defendant told the officer she wanted a female officer to conduct the stop and testified at trial that this was the reason she drove away.

Defendant argues on appeal that there was insufficient evidence of specific intent to elude.  Defendant's statements clearly show intent to elude the law enforcement officers who were chasing her. Even if her intent was to turn herself in to a female officer, it was still intent to elude.

No plain error when the jury sent out a note asking for a definition of fleeing to avoid arrest and asking if intent mattered and the judge said, "“[I]ntent is not part of the operating a motor vehicle to elude arrest charge.” While possibly erroneous, it was not plain error, as there was clear evidence of intent.

No IAC for trial lawyer not correcting this instruction. Even if IAC, would not have effected the outcome.

State v. Powell. Mecklenburg County. Appeal of murder conviction.

Defendant charged with shooting a man in his home. Defendant's cell phone was left at the home. State put on this evidence and a jail snitch. Convicted of 2d murder.

First, defense counsel oral stipulation that out-of-state conviction was sufficient to find him a record level II. 

Second, no error in allowing an LEO to testify as an expert in Jamaican patois. A police officer "translated" phone calls made by defendant from jail. The officer was born in Jamaica, lived there for 20 years, was married to a Jamaican woman and spoke Patois at home. Helpful to trier of fact and qualified to testify.

Third, sufficient evidence. Defendant's phone was there, a call was made from it near the house, and a jail snitch said the defendant said, "I must have dropped my phone after I killed him."

Fourth, prosecutor did not impermissibly vouch for a witness (no plain error), by asking if the prosecutor had told him not to lie and that he couldn't help him in his federal case.

State v. Rouson. Writ of Certiorari denied, where defendant failed to give timely notice of appeal and a meritorious argument not established.