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.

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