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.

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