Friday, December 21, 2012

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.

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