Monday, December 31, 2012

NC Court of Appeals Criminal Decisions, Dec. 31, 2012

Interesting Cases

State v. Daniels. Dare County.

Judge Wayland J. Sermons, Jr. ruled that 14-208.18(a)(2) and (a)(3) are unconstitutionally vague and overbroad. These provide that a sex offender cannot be:

(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.

(3)  At any place where minors gather for regularly scheduled educational, recreational, or social programs.

Defendant went with his wife and son to his son's Tee Ball game at the Lion's Club Center, which is used for community events and then another Park, to practice softball with his daughter. A cop saw him and had him arrested. Judge Sermon dismissed the charges, declaring the law vague.

The State appealed.

First, the court had no jurisdiction to rule (2) to be vague, as defendant was indicted on (3).

Second,  defendant did not have standing to bring a facial challenge, only an as-applied challenge.

Third, section (a)(3) of the statute is unconstitutionally vague, as it fails to give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited.

State v. Grainger. Randolph County. Appeal of 1st degree murder conviction.

Held: Court erred in failing to instruct on the lessor offense of accessory before the fact to first degree murder. This is a lesser offense because it is only punishable as a B2, in murder cases--even if the case is not tried capitally (language in the statute is "capital felony").

Facts in the case were simply that defendant dropped off the shooter to kill his father.

Other Cases

State v. Comeaux. Buncombe County. Appeal of four counts of indecent liberties.

1st, defendant challenges victim testifying in closed courtroom under 6th Amendment right to a public trial.

A judge may close the courtroom in sex offense cases during the victim's testimony by following the requirements of State v. Waller, that:

(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;

(2) the closure must be no broader than necessary to protect that interest;

(3) the trial court must consider reasonable alternatives to closing the proceeding; and

(4) the trial court must make findings adequate to support the closure.

Here, the court made adequate findings to close the court.

2nd, indictments were not defective, even though they did not give a specific date for a specific sexual act.

State v. Oates. State appeal of court grant of motion to suppress.

The trial court found that the affidavit that was used to get a search warrant was insufficient to establish probable cause.

The affidavit was based on an anonymous informant's tip. However, the tipper gave specific information that was corroborated by the police. This was enough.

Governor Perdue Pardons Wilmington 10

Today, Governor Perdue pardoned the Wilmington 10 on her way out of the door.

She granted them a pardon of innocence.  Her words are below:

"In 1980, a federal appeals court overturned the convictions in a written decision that highlighted the gross improprieties that occurred during the trial. The federal court determined as a matter of law that numerous instances of prosecutorial misconduct and other constitutional violations took place. Among other things, the court ruled that with regard to the testimony of the prosecution’s key witness – upon whose credibility the case depended entirely -- “the conclusion is inescapable that [he] perjured himself” and that “this fact was bound to be known to the prosecutor . . .” The court also declared that it was undisputed that key documents had repeatedly been withheld from defense lawyers. It also found numerous errors by the trial judge that had the effect of unconstitutionally prejudicing the defendants’ ability to receive a fair trial.

Since the trial ended, the prosecution’s key witness and two supporting witnesses all independently recanted their testimony incriminating the defendants. Furthermore, last month, new evidence was made available to me in the form of handwritten notes from the prosecutor who picked the jury at trial. These notes show with disturbing clarity the dominant role that racism played in jury selection. The notes reveal that certain white jurors believed to be Ku Klux Klan members were described by the prosecutor as “good” and that at least one African American juror was noted to be an “Uncle Tom type.”

This conduct is disgraceful. It is utterly incompatible with basic notions of fairness and with every ideal that North Carolina holds dear. The legitimacy of our criminal justice system hinges on it operating in a fair and equitable manner with justice being dispensed based on innocence or guilt – not based on race or other forms of prejudice. That did not happen here. Instead, these convictions were tainted by naked racism and represent an ugly stain on North Carolina’s criminal justice system that cannot be allowed to stand any longer.

Justice demands that this stain finally be removed. The process in which this case was tried was fundamentally flawed. Therefore, as Governor, I am issuing these pardons of innocence to right this longstanding wrong.”

Friday, December 21, 2012

NC Supreme Court Decisions, December 14, 2012

State v. Heien. Review of COA finding that a traffic stop was illegal.

The Court of Appeal unanimously ruled that the there was no reasonable basis for a traffic stop--finding that one broken brake light does not give rise to reasonable suspicion (during the stop, the officer asked for permission to search and found drugs).

The COA relied on this language, "section 20-129(d) required that “[e]very motor
vehicle . . . have all originally equipped rear lamps or the equivalent in good
working order, which lamps shall exhibit a red light plainly visible under normal
atmospheric conditions from a distance of 500 feet to the rear of such vehicle.” to show that "a red light" was adequate, not requiring two.

Justice Newby and Supremes reversed holding that an officer's mistake of law will not invalidate an otherwise lawful stop, even if no law has been violated. The officer reasonably believed that the law was violated, due to the broken lamp. The fact that the law turned out to be otherwise doesn't matter.

Justice Hudson, the Chief, and Timmons-Goodson dissented.


State v. Burrow. Vacate and remand.

Allows state to amend the record on appeal to show defense counsel was notified of intent to introduce a crime lab report and vacates the decisions below (lack of notice was basis for decision below).

State v. Lindsey. Per curiam reversal, for reasons in dissent.

COA Decision here: (description below from old Blogpost).

 Officer tried to stop a "bluish" van with the first letter W in it's license plate. The van got away. Later, a  "greenish-bluish" van crashed into a light pole near a windows. A black male with a "plaidish-type" shirt ran away. Police found a blunt wrapper in the van and a bag with some cocaine and marijuana in it in a trash can in the Wendy's parking lot. Defendant was apprehended.

All charges should have been dismissed for insufficient evidence.

1) Felony speeding to elude arrest: no evidence presented that this was the same van. Bluish van and one letter of the license plate. That's it. Insufficient evidence.

2) Possession of drugs: insufficient evidence for constructive possession. Items found in a trash can that weren't under defendant's exclusive control. Must have other incriminating factors to infer his possession. The fact that defendant wrecked a car in the vicinity, had blunt papers in the car, and ran are not enough. Insufficient evidence.

Steelman dissents on flee/elude and possession of marijuana; concurs on possession of cocaine.

State v. Rico. Per curium reversal of COA decision based on dissent.

Ordering that the entire plea must be set aside where there was a material mistake of law in the agreement. See COA decision/dissent here.

NC Court of Appeals Criminal Decisions, December 18, 2012

State v. Canty.  Sampson County. Appeal of firearm by felon conviction. -- Nathaniel Canty

Defendant's wife was driving 73 in a 70. Defendant was in the passenger seat. Saw cops and reduced speed to 65. Police followed them and the car crossed the white fog line. The police then pulled him for "unsafe movement." Wife taken out of the car and put in patrol car so they could write a warning ticket. Interviewed defendant about where he was going and became suspicious due to lack of eye contact, evasion, and nervousness. Gave them the ticket, then asked to search. Wife consented and they found a revolver and a rifle in a suitcase. [Classic pre-textual stop].

Defendant confessed.

First, defendant's lawyer didn't challenge the stop (although there was clearly good issues for lack of reasonable suspicion and prolongment), so no plain error.

Second, held was IAC for failure to file such a motion. Court finds the search was illegal and a motion would likely have succeeded. No strategic advantage to not filing.

New trial.

State v. Elmore. Catawba County. Appeal of 2 counts involuntary manslaughter. -- Matthew Elmore.

Defendant, drunk, ran a red light and killed two people. Jury convicted of involuntary manslaughter, but found not guilty of felony death by vehicle.

N.C.G.A 20-141.4(c) prevents double prosecutions for manslaughter and death by vehicle: "No person who has been placed in jeopardy upon a charge of death by vehicle may be prosecuted for the
offense of manslaughter arising out of the same death; and no person who has been placed in jeopardy upon a charge of manslaughter may be prosecuted for death by vehicle arising out of the same death."

HELD: While no one can be sentenced for both, no problem with submitting both theories of death to the jury.

State v. Franklin. Mecklenburg County.  Appeal of trafficking conviction. -- Malik Franklin.

Defendant was a passenger in a car during a stop for a seat belt violation. Trial court found that consent was given for search (which was disputed).

Held: Search: Defendant had no standing to challenge the search of the car, because he was a passenger. Stop: was valid and no evidence of pre-text. Was not unlawfully prolonged, as total duration was only 10 minutes.

Dissent by Elmore: Stop was pretextual and unconstitutional.

State v. Hester.  Mecklenburg County. Appeal of felony larceny conviction and habitual felon. -- Darryl Hester.

Defendant stole hair extensions from a beauty supply store. Sentenced to 7 years.

The state played a poor quality copy of the surveillance video at trial, while victims testified that the original video was of higher quality and clearly showed defendant committing the crime (which the grainy one did not). Defendant's attorney did not object.

Defendant testified. Said it was another employee that stole the stuff, but defendant had paid $900 in restitution anyway.

First, no plain error in allowing the victims to describe what the good quality video showed.

Second, IAC dismissed without prejudice.

State v. Randolph.  Appeal of 2d sex offense conviction. -- Henry Randolph.

Victim, 16 year old, reported that defendant (a father victim) touched her inappropriately.

Defendant was interrogated. He did not sign a Miranda waiver, rather wrote "no" on form asking if  he understood he had been charged (arrest warrants had been sworn) and had "not yet" been appointed counsel. The investigator took notes, which defendant refused to sign, saying she had gotten things wrong and then refused to answer more questions. Then the detective kept asking questions. The trial court suppressed statements made after this point, but not before defendant asserted his right to silence.

First, no error in admitting the statement through the officer. While her notes were not a verbatim statement or signed by the defendant, there was no error in allowing her to testify that he made that statement and that those were her notes of it. While you cannot admit a written statement that is not signed by a defendant and call it the defendant's written statement, you can testify to what a defendant said during a legal interrogation.

Second, no plain error in submitting 404(b) evidence of other statements that defendant had molested others.

State v. Redman.  Currituck County. Appeal of B&E motor vehicle, larceny, and injury to personal property. -- Robert Redman.

Defendant, drunk, took victim's car without permission, then left it in a field, doing damage to it.

First, sufficient evidence of felony larceny. Must show van worth more than $1,000.  The victim testified that the van was worth $30,000. This is sufficient evidence.

Second, no fatal variance. The indictment said he caused $200 of damage, but a witness said it was $5,000. Fatal variance was not raised, so it is waived.

State v. Royster. Mecklenburg County. Appeal of felony carrying a concealed weapon/motion to suppress. -- Ellis Royster, Jr.

On Halloween, defendant stopped for speeding. During the stop, the officer smelled marijuana, searched the car, frisked the defendant, and discovered defendant was carrying a weapon and arrested him.

Held: legal stop.

Saturday, December 8, 2012

NC Court of Appeals Criminal Decisions, December 4, 2012

State v. Boyett. New Hanover County. Appeal of multiple counts of rape, sex offense, and incest.

Defendant, the victim's grandfather, had had sex with her many times since her 18th birthday. The victim was overheard discussing this on a call with defendant and told her parents her grandfather had forced her to engage in numerous sex acts.

First, the trial court erred in failing to instruct on attempted second degree rape and attempted incest (on some counts), because the victim said, "Defendant “tr[ied] to get his penis to go inside my vagina.” When asked how far Defendant was able to get his penis inside her vagina, the victim replied, “Not very far. If he could even get it in at all.” The state had the burden to prove penetration. Plain error not to instruct on this.

Second, no error in using the word "victim" in the jury instructions.

Third, trial court erred in determining that second-degree sex offense was an "aggravated offense" for lifetime satellite based monitoring purposes.

Remanded for retrial on rape and incest; upheld convictions on sex offense.

State v. Burton. Durham County. Appeal of arson conviction.

Defendant burned down his rental when threatened with eviction.

First, sufficient evidence of arson where the fire was started in his room when a roommate was in the shower, and he was seen in the area shortly afterwards.

Second, no error in court failing to grant a second continuance for defendant to locate his alibi witnesses. This was a reasonable time and opportunity to prepare his defense.

Third, counsel was not ineffective in not moving for a mistrial after sustained objections to evidence (that got before the jury) that defendant had threatened to burn the house down.

State v. Corkum. Guilford County. Appeal of order vacating a prior award of 8 days jail credit.

Defendant pleaded to second degree statutory rape and given supervised probation. He was later violated and revoked. He was awarded confinement credit for 208 days. Defendant was then released with 9 months remaining on his sentence, under 15A-1368.2 (the new post-release supervision statute).

He was then violated on post-release supervision and sent to serve the remainder of his sentence. The court denied to give him 8 days credit for the time he was in jail awaiting hearing on a prior violation (that resulted in a modification).

The law on calculating jail credit is 15-196.1: "The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in
confinement in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence. The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided,
however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject."

The court was required by law to give him credit for the 8 days spent pending revocation of post-release supervision.

State v. Golden. Randolph County. Appeal of conviction for perpetrating a hoax on law enforcement by use of a false bomb.

Defendant arrested on a domestic and police find a cylindrical device they think might be a bomb.  Police questioned defendant about this and he told them it was a gag. Nonetheless, the bomb squad came out and eventually figured out it wasn't a bomb.

First, no error in allowing 404(b) evidence that defendant had been hostile/violent to the victim in the past. This was relevant to the common scheme the defendant had to intimidate the victim.

Second, there was sufficient evidence of "intent to perpetrate a hoax." Defendant had an ongoing objective scaring the victim and the jury could reasonable believe that's why he brought the gag bomb and didn't tell about it when the officers were searching his car.

Third, the trial court improperly instructed the jury on flight. Defendant made no attempt at flight after telling police there was nothing to be concerned about in the car, despite his knowledge of the fake bomb. However, such error was harmless.

State v. Grier.  Mecklenburg County. Appeal of larceny of chose in action, forgery, uttering case.

First, no error in the judge failing to instruct the jury that defendant couldn't be convicted of mutually exclusive crimes. Defendant contends that a single instrument cannot be both a forgery and a valid "chose in action."

Defendant argues that forgery requires proof of a counterfeit instrument, while larceny of a chose must show a valid instrument. However, court finds that a Larceny of chose in action only requires a check to be stolen, it does not have to be valid.

Second, there was insufficient evidence of larceny of a chose in action. Defendant was charged with stealing a blank check. This is not sufficient evidence. A blank check is not a chose in action.

State v. Hoff.  Person County. Appeal of first burglary.

Man heard someone breaking in and shot at him. Then he caught a man in his home, through a broken window. This man then fled the scene, saying the homeowner had shot his brother before he left.

First, sufficient evidence that defendant was the perpetrator where defendant's fingerprint was found inside the home and the victim identified the defendant in-court (albeit "uncertainly")

Second, counsel was not ineffective in failing to challenge the reliability of fingerprint evidence.

State v. James. Rowan County. Appeal of AWDW on a government official.

Defendant hit the deputy with a chair, during a drunk and disorderly call.

First, no  error in allowing the deputy to opine on the weight of the chair. He had a factual basis to make such statement.

Second, there was sufficient evidence, where the officer testified the defendant threw the 10 pound chair at him "like a baseball." This was a deadly weapon.

State v. Mitchell. Alamance County. Appeal of possession of marijuana, firearm by felon, and habitual felony.

Defendant was on 85 when he was stopped by a K-9 officer for speeding. During the stop, officer determined the defendant's license was revoked. The officer told them he intended to write a warning ticket, but wanted to walk his K-9 around the car first. Defendant then told his passenger to take the blunt out of her pants. The officer then searched the car and found the gun, a scale, and a couple of ounces of weed.

First,  the presence of the blunt, voluntarily acknowledged, gave probable cause to search the car.

Second, sufficient evidence of possession of firearm by felon. The gun was in the glove box of the car the defendant was driving and, when the officer was searching, the defendant told him there was a gun in the glove box.

State v. Reid.  Wake County. Appeal of trafficking conviction.

Police received multiple tips from confidential informants that the defendant had drugs. Police set up a sting on a deal, with one of the informants being involved. Police approached defendant when he arrived for the deal, smelled marijuana and frisked him and felt a "large bulge" that, according to training and experience was "packaged like narcotics." Eventually found vacuum sealed drugs.

1) Defendant complained about his appointed attorney and then decided to proceed pro se. Defendant now objects that the court did not tell him he could hire his own. Court followed 15A-1242-- advising of his right to an attorney and court appointed attorney and that he understood consequences of waiving. This was adequate, even without specific reference to right to hire an attorney.

2) No plain error in failing to instruct on entrapment. No credible evidence that defendant would not have committed the crime but for law enforcement involvement.

3) Failure to give up names of informants is an unpreserved issue.

4) No plain error in failing to suppress. The drugs here were covered by the Terry "plain feel" doctrine, as they were immediately apparent contraband upon plain touch during a lawful Terry frisk.

State v. Rollins.  Mecklenburg County. No error in failing to give defendant hearing on his MAR.

Defendant filed an MAR based on juror misconduct--watching publicity during the trial. The trial court denied a hearing, stating "[n]othing in the motion or affidavit indicates which news broadcast the juror supposedly viewed, the degree of attention the juror paid to the news story about the defendant’s case, or the extent of any information the juror actually received or remembered from the news broadcast. There is nothing in the motion or affidavit t indicate that the juror shared any of the contents of the news story with other jurors during the trial or the jury’s deliberations."

Defendant had argued that TV at that time included references to other crimes, excluded from the jury's consideration.

COA upheld, saying, "There is insufficient evidence to determine whether juror misconduct occurred as defendant’s motion and Bossard’s affidavit merely contained general allegations and speculation."

Judge Hunter dissents.

State v. Shaw. Durham County. Appeal of possession of stolen property, uttering, and habitual felony.

Defendant challenges conviction as habitual felon. One of the three strikes the state used was defendant's prior conviction for habitual misdemeanor assault. Defendant argues that the intent of the statute prevents it from being used for habitual felon.

The habitual assault statute, 14-33.2, says, "A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of 14-34, and has two or more prior convictions for either misdemeanor or felony assault, with the earlier of the two prior convictions occurring no more than 15 years prior to the date of the current violation. A conviction under this section shall not be used as a prior conviction for any other habitual offense statute. A person convicted of violating this section is guilty of a Class H felony."

The COA holds that the statute plainly forbids what the judge did in this case and remands for re-sentencing as a non-habitual offender. Further, the effective date of the statute applies to anyone being sentenced for offenses committed after that day, not to habitual misdemeanor assault convictions after that date.

Friday, December 7, 2012

NC COA Decisions, Nov. 20, 2012

State v. Barnett.  Appeal of 2d rape conviction. -- William Barnett, Iredell County.

Allegation was from 1985, when the victim was 16 and the defendant, her uncle, was 26. The victim reports that she got drunk with her uncle, took a "yellow pill" for a headache, passed out/blacked out, and woke up in a sex act with her uncle. Victim described prior molestation (touching) when she was younger by this uncle.

Over objection, the court allowed 404(b) evidence of sex acts with other cousins.

Held that the admission of the prior bad acts were not error under 404(b), as they showed a pattern of uncle handsy and his nieces.

Remanded to correct clerical errors (wrong box checked).
State v. Grice.  Appeal of manufacturing marijuana conviction / denial of motion to suppress. -- Jerry Grice, Johnston County.

Police went to defendant's home to investigate anonymous tip. From the driveway, one of the officers "looked around the residence" and saw marijuana plants growing in a bucket, beside an outbuilding.  Police seized the plants, then came back with a search warrant.

Held: The officers did not have a legal right to walk across the defendant's back yard and seize the plants. While they were in plain view, this did not give a right to the officers to enter the curtilage and seize them, as there was no exigent circumstance. The defendant was not home and there was nothing to prevent the officers from securing the area and getting a warrant.

New trial.

State v. Hope.  Appeal of Assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI). -- W. D. Hope, Randolph County.

Defendant went to victim's house because, either the victim was hitting on his wife or the victim owed him money. Then beat him in the face with a metal pipe. Defendant, in statement to police, said the victim threw the 1st punch and pulled the pipe, which defendant took from him.

Defendant requested self-defense instruction for non-deadly force; court was only going to give one on deadly force, defendant then requested no self-defense instruction.

First, no error to refuse to give the non-deadly force self-defense instruction, as it was not a correct statement of law in the situation. Second, no plain error in failing to give the other instruction, since the court did so at the defendant's request.

Finally, no error in failing to give simple assault as a lesser, because there was uncontroverted evidence of serious injury.

State v. Huss. Appeal of kidnapping, sex offense and rape convictions. -- Wayne Huss, Lincoln County.

Defendant and victim met at self-defense martial arts classes taught by the defendant. During breakup, sex occurred. Victim reports rape, defendant alleges it was consensual.

Held: Trial court erred in failing to dismiss the charges.  A rape/sex offense can only be found if: (1) force is used; or (2) the victim is "physically helpless"--defined as unconscious or physically unable to resist.

The court instructed on physical helpless theory of rape, but no evidence was presented that the victim was physically helpless: she was never unconscious and is otherwise able-bodied. The mere fact that defendant was trained martial artist and much bigger than the victim does not mean she was "physically helpless."


State v. Jones and White.  State appeals non-suit ruling on obtaining property by false pretenses  -- Eric Jones and Jerry White, Mecklenburg County.

After verdict of guilty, trial court threw out all the obtaining property by false pretenses charges and trafficking in ID theft charges. The only conviction that stood was an ID theft conviction against Jones. State appeals.

During a traffic stop of Jones, police found credit cards for four people who had been checked in to a nearby hotel by White. Evidence shows Jones used one of the credit cards at Tire Kingdom to get new tires for his car.

No error on OPFP: indictment didn't list what was stolen or the value. Listed only "services" from Tire Kingdom. Defective.

No error in trafficking. Indictment didn't list name of person (or that the name is unknown) who the IDs were transferred to. Defective.

Elmore dissents.

State v. Martin.  Appeal of satellite-based monitoring. -- Kenny Martin, Moore County.

Found it did not violation 4th by requiring defendant to submit to search and seizure.

State v. Sergakis.  Defendant tried for larceny, conspiracy, false report and breaking and entering. Jury convicted on all but breaking and entering. -- Nicholas Sergakis, New Hanover County.

First, sufficient evidence of larceny over $1,000 when victim testified that the computers taken were worth $1,100.

Second, error to instruct jury that they could convict the defendant for conspiracy to commit larceny or breaking and entering. The indicted count was just felony breaking and entering. Error to instruct on conspiracy to commit larceny, which was not a charged crime. Plain error.

Tuesday, December 4, 2012

NC Court of Appeals Criminal Decisions, Nov. 6, 2012

State v. Buckheit. Wake County. Appeal of denial of motion to suppress intoxilyzer results in a DWI.

Facts: Defendant arrested and taken to jail. At 10:33pm was advised of his right to have a witness present. At 10:39pm, Defendant called a friend to witness. At 10:52pm, the witness arrived and was told to wait. At 11:09pm, without the witness present, the defendant was made to take the intoxilyzer and failed. Witness finally saw the defendant at about midnight.

N.C.G.S. 20-16.2(a) states: before giving an intoxilyzer, the state must give the person the right to contact an attorney or witness and may delay the intoxilyzer up to 30 minutes.

Defendant was made aware of his rights, requested a witness, who arrived within 20 minutes and told the front desk. Nonetheless, the witness was not allowed to be present for the intoxilyzer (likely due to malfeasance). Evidence should have been suppressed.


State v. Cureton. Mecklenburg County. Appeal of resisting an officer, breaking and entering, larceny after breaking or entering, possession of a stolen firearm, possession of firearm by felon and habitual felony.

Issue #1: Admission of defendant's confession. Defendant refused to sign the Miranda waiver then asked questions about the right to counsel. He never specifically asked for a lawyer or signed the waiver.

No error. While he didn't sign the waiver, the signing of the waiver "does little, if anything to indicate that defendant did not validly waive his rights." Defendant was found competent and his confusion about his rights in the confession was explained fairly by the detectives. Defendant talking after being warned was sufficient to waive his rights.

Issue #2: Right to counsel. Defendant was appointed counsel three different times. His capacity was raised, but he was found competent. Defendant threatened to ill his 2nd counsel, who was then allowed to withdraw. Defendant accused his 3rd counsel of lying and wrote him, "I will represent myself in court you lying assed bastard." The trial court found that defendant had forfeited his right to counsel and forced him to proceed pro se, but asked defendant if he would like to try another lawyer and defendant refused to respond. The court then, at another hearing, tried to appoint another counsel, who met with the defendant and informed the court that the defendant did not want his representation. After trial had begun, defendant requested counsel and the trial court denied the request, saying he had forfeited it.

First, defendant was not in the gray area of Indiana v. Edwards of one who is competent to stand trial, but not to defend himself, because this standard does not apply to forfeiture, only to voluntary waivers.

Second, defendant did commit serious misconduct resulting in forfeiture. He threatened his counsel physically and with bar complaints, was non-compliant, and shouted, abused and spat at his attorneys.

Note: The court relied a lot on the fact that the state doctor diagnosed the defendant as "a malingerer [a liar]" because he threw the competency test and performed worse than one would be expected to perform if they only used chance. The state does this all the time and simply ignores the fact that one can both lie on a test AND be mentally ill. All one has to do is read the facts and you can tell this guy is mentally ill. If you give someone a mental health test and they throw it, the proper response is to note that the defendant is throwing the test and give them more subjective tests that they can't cheat on. The state just decides, if you try to cheat the mental health test, you're just a degenerative liar. Any good psychiatrist would tell you, that it's easy to be both a degenerative liar and mentally ill.

State v. Davis. Columbus County. Appeal of trafficking in opium.

First, Defendant alleges fatal variance: indictment says trafficking in opium, evidence was that it was oxycodone, an opium derivative.

Held: No variance. Indictments are facially invalid where they fail to identify the controlled substance. The statute on opium says it is unlawful to possess opium, or any salt, compound, derivative, or preparation of opium or opiate... which felony shall be known as trafficking in opium.

Thus, the plain language of the statute says that "trafficking in opium" includes opium derivatives.

Second, no error in allowing agent to testify that the pills were oxycodone. Drugs must be identified by chemical test, unless the state can establish the identity in other was beyond a reasonable doubt. The appearance of the drug is not enough. Here, the agent did run it through a chemical analysis (exactly what is vague in the opinion) and this was sufficient.

"Her testimony explained the technique she used to isolate the components of the pills, including running the material through an "instrument" that generated a graphic printout of the chemical make-up of the components, which she could then compare to known graphs of the components and identify the substances in the pills." 

Third, no plain error in instructing juror they could  convict defendant for possessing "any mixture" containing an opiate (rather than saying a derivative). This couldn't have made a difference.

State v. Kockuk. Durham County. State appeal of grant of motion to suppress.

Trooper pulled defendant at 1:00am, after seeing the car cross the dotted white line for 3-4 seconds, 2 times. Defendant was drunk. Trial court found there was not reasonable suspicion for the stop.

Weaving must be coupled with other factors to give reasonable suspicion.  Here, there was nothing more than weaving. No improper turns, signals, or otherwise erratic driving.

Beasley Dissents--two weaves that late at night is enough.

State v. Land.  Appeal of possession with intent to sell marijuana, delivery of marijuana, and habitual felon.

Indictment not defective because the delivery did not list a weight, as the amount of marijuana transferred is not an essential evidence.

Elmore dissents. If the delivery is less than 5 gms, there must be money exchanged and the indictment did not allege this.

State v. Minton.  Appeal of conversion of property by bailee.

Defendant accepted 10 checks for $500 from his co-tenant, but then never gave them to the landlord. Held that there was sufficient evidence of intent to defraud, in the form of failure to comply with contractual obligations (which is specifically exempted from the obtaining property by false pretenses statute, but not the conversion statute).

State v. Ryan.  Appeal of 1st degree sex offense and indecent liberties.

Held: Improper expert vouching. State's expert, Dr. Gutman, testified that child had been abused, her story was not fictitious, and the child's testimony had not been coached.

First, absence physical evidence, it is improper for an expert to conclude the child has been abused. This was permissible, because the doctor did not testify that the specific acts by the defendant had been committed, simply that the physical damage noted to the child was consistent with being abused.

Second, that her story wasn't fictitious and that she wasn't coached was pure vouching and inappropriate.

New trial.

State v. Sexton.  Appeal of ID Theft conviction.

Defendant arrested for shoplifting and gives fake name, Roy Lamar Ward. Gave a birth date, telephone number and employer. Issued a citation that contained a social security number. Where the SSN came from is unclear.

Indictment said used: Name, Date of Birth and SSN.

ID Theft: requires proof that someone uses identifying info of another with intent to defraud to obtain economic advantage or avoid legal consequences. Acknowledging the last 4 digits of the SSN was enough. The fact that the SSN was written on the citation are enough to "use" it.

No plain error to fail to instruct jury that had to find SSN to convict the defendant.