Thursday, December 26, 2013

Capital Trials, 2013

2013, The Year of 1 Death Sentence.

There were four capital trials in 2013:

Death: 1
Mario McNeil, Cumberland County. McNeil refused to put on any case at sentencing, effectively requesting a death sentence.

Life: 2

Andre Hampton, Mecklenburg County.
Robert Dixon, Alamance County.

Less than Life
Terry Broussard, Cumberland County. Jury returned verdict on 2nd degree murder, only. Sentenced to less than 20 years.

Friday, December 20, 2013

NC Supreme Court Criminal Decision, Dec. 20, 2013.

State v. Franklin. Per curiam affirmed, 3-3 (no precedential value). -- Malik Franklin, Mecklenburg County, Judge Lewis.

Post on Decision Below: 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 pre-textual and unconstitutional.

Tuesday, December 17, 2013

NC COA Update, Dec. 17, 2013

State v. Cornelius Clark. Murder case.

No error in informing jury, during jury selection, that Defendant had noticed the affirmative defense of self defense, citing N.C.G.S. 15A-1213.

State v. Jimmy Jones. No error in failing to intervene when DA called children in sex case "victims." No error in referring to children as "victims" in this case because, unlike cases where it was found to be error, the defendant did not object and no conflict that sex abuse occurred in this case (rather, just over who was the perpetrator).

State v. Danny Paul. No violation of "law of the case doctrine" where defendant received a higher sentence at resentencing due to new evidence of additional prior felonies for record level purposes.

State v. Frederick Weaver. Licensed security guard who stopped defendant and search him in DWI case was not a state actor under the Fourth Amendment.

Tuesday, December 3, 2013

NC COA Update, Dec. 3, 2013

State v. Sabur Allah. Insufficient evidence of felony breaking and entering where no evidence of any intent to commit a felony inside the apartment. Here, defendant took victim out of apartment to commit crimes. No intent to commit felonies inside.

State v. Glenn Benters. Upheld trial court suppression, finding search warrant was deficient. Affidavit for search warrant simply said a "reliable confidential informant" says that Defendant is growing marijuana. Police checked electricity records and found them consistent with a grow operation.

State v. Kevin Dahlquist. Upheld warrantless blood draw in DWI case as exigent circumstance/evanescent evidence, where defendant smelled of alcohol, refused breathylzer, and failed a sobriety test. Officer said it would take 4-5 hours to get the warrant, based on past experience. Court upheld, while noting that the better practice would probably be to use video transmission or at least call the magistrate to determine if it really would take that long.

State v. Jeffrey Jones. Upheld SBM program, finding irrelevant that a 2012 U.S. case, US v. Jones, found that GPS tracking constitutes a 4th Amendment search.

State v. Robert Stewart. In nursing home case (multiple homicide in Moore County), found no error in admitting evidence of Defendant's extensive weapons -- including mines, firearms, and ammo -- found in defendant's home as they were relevant to premeditation. No 403 error in admitting 42 crime scene photos. Not cumulative/prejudicial.

State v. Ladarrius Thatcher. Insufficient evidence of 2d murder where all evidence  suggested it was an accident. Remanded for sentencing to involuntary manslaughter.

Tuesday, November 19, 2013

COA Update, Nov. 19, 2013

Interesting Cases Only:

State v. Chukwa. -- Sunny John Chukwa, Mecklenburg County. No error to hold second competency hearing after lawyer said only communication he has with client is client saying, "It is in god's hands."

State v. Shannon. -- Michael Shannon, Swain County.

Sufficient evidence of intimidating a witness where Defendant threatened a therapist, demanding they write a letter to DSS regarding his mental status. Ruled that the statute covers prospective witnesses (over dissent).


State v. Northington.  -- Vincent Northington, Onslow County.

Evidence that items, without more, is sufficient to prove felony breaking and entering (intent to commit larceny) and, on these facts, no entitltement to an instruction on misdemeanor breaking and entering (no intent to commit larceny).

Friday, November 8, 2013

NC Supreme Court Criminal Decisions, Nov. 8. 2013

State v. Cox.-- Reversing the COA grant of relief in a possession of firearm by felon case. Ronald Cox.

Facts: During a stop, police find a gun in a car, with four people in it. Tell them if no one takes the gun charge they'll all be arrested. Defendant says it's his. He is charged with possession of firearm by a felon.

History: Decision Below, State v. Cox

COA reversed on corpus delecti grounds. NCSC remanded in light of State v. Sweat, which said that  defendant's confession alone could prove guilt if "the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness.” COA ruled that, in light of Sweat the case should still be overturned, as there were no corroborating circumstances to the Defendant's confession other than that he owned a gun.



Supreme Court Reversed. Corpus delecti requires corroborative evidence that a crime was committed-- it need not corroborate that the defendant is the guilty party. Here, the presence of the gun was sufficient corroboration of the confession to allow conviction.

State v. Heien. Per curiam affirmed -- Nicholas Heien.
COA Opinion Post: State v. Heien. Appeal of remaining issues (previously COA found a stop had no reasonable suspicion for a stop, but the NCSC reversed and sent it back on the rest of the issues) in a cocaine case.

First, defendant challenges the search on ground of undue prolongment of detention during traffic stop. Driver was stopped for a brake light violation. While giving a warning ticket, the officer observed the defendant being "nervous" in the back seat. After giving the warning, another officer checked defendant's ID for warrants, questioned about contraband, then asked to search. Permission was given and things were found.

Held: This was not undue prolongment, as defendant would have felt free to leave and the entire stop only lasted 13 minutes (prior to consent).
State v. Huss. Per curiam affirmance (3-3, no precedential value) -- Wayne Huss.
COA Opinion Post: State v. Huss. Appeal of kidnapping, sex offense and rape convictions.

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."

Reversed.

Tuesday, November 5, 2013

NC Court of Appeals Update, Nov. 5, 2013

Interesting Cases Only:

State v. James. --- Wayne County, Kelvin James. Although the court found a prima facie showing of racial discrimination in jury selection, the Court continues its streak of never finding a Batson violation in any North Carolina case. Must be cause it never happens.

State v. May. -- Alamance County, Floyd May, Sr.

Court erred in instructing deadlocked jury, after third "deadlocked note," when he said, "I’m going to ask you, since the people have so much invested in this, and we don’t want to have to redo it again, but anyway, if we have to we will." Reference to the time/cost associated with the trial is coercive and violates NCGS 15A-1235. Also, when a judge gives any part of 1235(b), he or she must give them all.

Of note: no error to allow expert pediatrician to testify that the child in this case (a sex case) exhibited symptoms of consistent with sexual abuse.

New trial.


Tuesday, October 15, 2013

NC Court of Appeals Update: Oct. 15, 2013

Interesting Cases

State v. Thomas Murder -- Columbus County, Danny Thomas.

New trial ordered in 1st degree murder case. During evidence, it came to light that one of the jurors knew a witness. The judge questioned the juror and allowed the defense and state to question her. The court found there was not a basis for a cause challenge. The Defense requested to use a peremptory stirke, which was denied.

Held: Once the court re-opens voir dire (by questioning a juror), under N.C. Gen. Stat. 15A-1214(g), the Court must allow the defense to use remaining strikes on that juror. Held that this is so even if a jury has been empaneled.

State v. Blankenship. DWI -- Buncombe County, Seth Blankenship.

No probable cause to make a stop where a caller calls 911 and tells 911 that a driver is driving erratically, where the officer did not observe any traffic violations.

State v. Simpson. Drugs -- Onslow County, Ladonn Simpson

Insufficient evidence for maintaining a vehicle where court found no evidence that defendant allowed others to use his car for drugs.

Friday, October 4, 2013

NC Supreme Court Criminal Decisions, October 4, 2013

State v. Hester. Darryl Hester, per curiam affirmed.

Post on Opinion Below: 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. McDaris. Per curiam affirmed of unpublished decision below.


State v. McKenzie. Bobby McKenzie, Per curiam reversal.

Post on Opinion Below: State v. McKenzie.  Duplin County. Appeal of Superior Court order reversing dismissal of DWI.

Issue: was defendant subject to double jeopardy due to civil revocation of his CDL?

Held: The prior one-year CDL revocation under 20-17.4(a)(7) was a prior criminal punishment. Subsequent DWI prosecution was barred by double jeopardy. While 10 day and 30 day revocations are civil remedies, the 1 year revocation was a criminal punishment.

Hunter dissents.

State v. Pizano-Trejo. Fransisco Pizano-Trejo, per curiam affirmance (3-3, no precedential value) of unpublished decision below.

State v. Rollins. Demario Rollins, per curiam affirmed.
Post on Opinion Below: 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 to 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. Wilkes. Timothy Wilkes, per curiam affirmed.

Post on Opinion Below:  State v. Wilkes.  Moore County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), child abuse, and AWDWISI.

First, sufficient evidence of intent to kill where defendant hit female victim in the head multiple times with a baseball bat, continuing to hit her after she fell to her knees.

Second, no error in convicting on both assaults.  Here, defendant was interrupted while beating the victim, went to beat the child, then came back to hit her more. This was a separate assault in that it was distinct in time, caused injuries to different parts of her body, and was the result of separated thought processes.

Hunter dissents and says this was one continuous assault.

Tuesday, October 1, 2013

Court of Appeals Update, Oct. 1, 2013

Interesting Cases:

State v. Ashe. Harnett County -- Shannon Ashe.

Court erred by failing to intervene sua sponte and holding a competency evaluation where testimony showed Defendant was schizophrenic and had outbursts during trial. Court must hold such a hearing whenever confronted with "substantial evidence" that the defendant "may be incompetent." New trial ordered.

State v. Call.  Rockingham County -- Jerry Call.

No 6th amendment confrontation problem for allowing out-of-court statements of deceased store manager's statements to store investigator about a robbery, on grounds that (1) not to the police (Crawford) and (2) were made prior to indictiment.  Thus, they completely fall outside the 6th Amendment.

In re Cline. Upholding the removal of Tracey Cline as DA in Durham County. No legal analysis here, but if you're interested, read the case.









Tuesday, September 17, 2013

COA Update, Sept. 17, 2013

This post only highlights cases I found interesting.

State v. Barnes. -- Wayne County, Christopher Barnes.

Defendant properly convicted for possession controlled substance in jail. Defendant argued that there was no intent, as he was brought to jail involuntarily. Court held that knowing was enough, no intent needed to be shown beyond that.


McGee dissents.

State v. Carr. -- Cumberland County, James Carr.

No error in failing to strike juror who said he had a friend murdered in the 1980s and that "he thing that affects me is there seems to be loopholes when a person is guilty and the loopholes allow them to get out of it, and I don’t think that’s justice.” When defense counsel asked, “And that you would not be able to put your feeling about loopholes completely aside and, therefore, you don’t think you could be fair and impartial in this case" Juror 4 responded, “Correct.”

No error because the juror then later said they would follow the law.

Basic rule of jury selection: if you say you can follow the law, then nothing else matters, no matter how much bias you admit..

State v. Jackson. -- Mecklenburg County, Damian Jackson.

Held that a show-up identification was impermissibly suggestive where police took defendant out of a car, shined a light on him, and told the victim "we think we found the guy." 

However, the in-court ID was admissible because other factors showing reliability -- the encounter lasted 5 minutes (which the court seems to say means she had a good opportunity to view the assailant), the pre-ID description somewhat matched (5'9" with dreadlocks wearing a white tank top and gray sweatpants -- the court says his clothing didn't match this but doesn't tell us exactly how) and she was "100%" sure.

Effective Outcome: show-ups, while disfavored and unreliable, will always be admissible, because the court can hang its hat on anything to protect the arrest.

State v. Kirkwood. -- Johnston County, Alphonso Kirkwood and Larell McDaniel

No double jeopardy problem in convicting defendant of three counts of shooting into occupied property, even though the shots were fired in quick succession, because they hit different parts of the house and were fired from a revolver which had to be cocked each time it was fired.

State v. Tinney. -- Moore County, Andrew Tinney.

Inclusion of an invalid plea appeal term (including the right to appeal the waiver from juvenile court) did not render the plea invalid. While normally that would (if the plea includes the right to appeal something that cannot be appealed), in this case the Court questioned the defendant on the issue and informed him that the provision was likely unenforceable. Because the defendant knew this and proceeded anyway, the plea was not invalid.


Tuesday, September 3, 2013

Court of Appeals Update, Sept. 3, 2013

State v. Cooper.  Appeal of murder case. -- Wake County, Bradley Graham Cooper.

Court improperly refused to let defense expert testify that supposedly incriminating data found on defendant's computer could not accurately be timestamped (time was crucial to the incriminating data) and that the data might have been planted. Any violation of the discovery rules (relating to the last minute finding of the expert) was outweighed by the defendant's constitutional right to present a defense. Further, the courts failure to hold an in-camera review of FBI computer analysis information on vague "national security grounds" violated due process.

State v. Gaston.  Appeal of murder case. -- Mecklenburg County, Marty Tarrell Gaston.

No error in refusing to give instructions on self-defense ansd voluntary manslaughter, where defendant's theory was that the gun went off by accident and no evidence was presented that defendant in fact formed a belief that it was necessary to kill to protect himself.

State v. Gilbert. Appeal of indecent liberties.  -- Forsyth County, Alvin Gilber.

Short form indictment is sufficient to charge statutory rape of a 13, 14, or 15 year old. Did not have to specifically allege the age of the victim.

State v. Verkerk.  Appeal of DWI. -- Orange County, Dorothy Hoogland Verkerk.

Strangely, in this case, a firetruck flashed it lights and pulled the defendant over. Remanded for determination if the firetruck was a state actor and, if so, did the fire truck have reasonable suspicion to make the stop.

Held that the truck did not have probably cause to make the stop as a citizens arrest under N.C. Gen. Stat. 15A-404.


Tuesday, August 20, 2013

NC COA Decisions, August 20, 2013

State v. Agustin.  Appeal of rape, Burke County - Arnulfo Agustin.

No error, in rape of child case, in not instructing on lesser of rape, where no dispute the child was under 18.

State v. Bowden.  Appeal of murder, Cumberland County - Bobby Bowden.

Bowden entitled to parole in 1975 murder conviction based on good time/etc. where DOC applied the good time to his sentence and gave him a release date.

State v. Green.  Appeal of burglary, sex offense and robbery, New Hanover County -- Darius Green

Sufficient evidence of sex offense where defendant, at gunpoint, forced victim to penetrate her own vagina with her own fingers.

No 404(b) error in putting on evidence that defendant robbed a Holiday Inn 2 days after the crime, as similar clothing was worn (black mask) in both cases, both involved gun, and both involved moving the victims around asking for money.

1st degree sex-offense not an "aggravated offense" for lifetime satellite-based monitoring.

State v. Knudsen. State appeal of alcohol case, Forsyth County. -- Eric Knudsen.

Upheld trial court suppression. Defendant was seized on the sidewalk when two uniformed officers, with weapons, approached and blocked his path with a bicycle. No reasonable suspicion for the stop when defendant had a cup with clear liquid in it.

State v. Marino. Appeal, Moore County.  -- Jory Marino.

Held: No error in refusing to allow defendant to review source code of intoxilyzer. Not Brady evidence as no showing it was material or favorable. Further, no statutory right to discovery (beyond Brady) in DWI cases. No error in denying MAR without a hearing.

State v. Murray.  Appeal of PWISD Cocaine, Cleveand County -- Donnell Murray.

Court erred in allowing evidence of a photo supposedly of Defendant's sons, where no one could testify that they were his sons (they were picked out of a lineup as selling drugs from defendant's home).

State v. Packingham. Appeal of accessing social network by sex offender, Durham County --  Lester Packingham.

Found that law forbidding sex offenders from using social networks violated the 1st amendment and was an over broad limit on freedom of speech.

State v. Perry. Appeal of 1d murder case, Wake County -- Johnathan Perry.

Child death case/shaken baby case.

No error in allowing state medical examiner to testify to opinion that injury was "intentionally caused," allowing state expert to testify to all elements of the offense. Sufficient evidence of murder where defendant was last in presence of baby, alone, and had subdural hematomas.

LWOP does not violate 8th amendment.

State v. Presson. Appeal of homicide case, Dare County -- James Presson.

Sufficient evidence where, while there was significant evidence of self-defense, there was some evidence the defendant was the aggressor and used excessive force.

State v. Tatum-Wade. Appeal of evading income tax, Wake County -- Gloria Tatum-Wade

Court erred in keeping out character evidence of defendant's trusting nature (relevant to defense of no intent to defraud due to reliance on advice), but found it harmless.

State v. Walston. Appeal of sex offenses, Dare County -- Robert Walston.

Error for judge to refer to children as "victims" rather than alleged victims, as there was dispute as to whether any sex offense had occurred (20 years previously).

Error for judge to keep out evidence of Defendant's good character for being respectful around children. Error to deny defense request to make a proffer of this evidence.

Actions arise (for statutes that say "all actions arising on or after...") on the date of the superseding indictment, not the date of the original indictment.

Wednesday, August 7, 2013

NC Court of Appeals Criminal Decisions, Aug. 6, 2013

State v. Bacon. Appeal of involuntary manslaughter conviction. -- Buncombe County, Evan Bacon, Jr.

Appeal on sentencing issue. No error in failing to find two mitigating factors, but court did err in finding aggravating factor.

Court found aggravating factor of "[t]he defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person."

Court found that this is the same evidence necessary to show recklessness for voluntary manslaughter purpose in this vehicular homicide.

No error in rejecting mitigating circumstance, of "positive employment history," where only evidence was that defendant had worked at GE for 29 years.

Remanded for resentencing.

State v. Barrett. Appeal of indecent liberties conviction. -- Union County, Jeffery Barrett.

39 year old groping a 15 year old.

First, no error in allowing prior statements of victim in as corroborative, as the additions/differences from the trial testimony were minor.

Second, no error in allowing testimony of witness about prior arrests of the defendant.  Witness only said got defendant's birth date out of "the system" based on "prior arrests."

State v. Blackwell. Appeal of possession of cocaine and selling cocaine. -- Person County, Dennis Blackwell.

Defendant sold $20 and $40 worth of cocaine to an undercover officer. He was found guilty of these charges and being a habitual offender and was sentenced to 9-11 years.

Jury sent out a note after 70 minutes of deliberations saying, "“What can we do if we have a verdict of 11 saying guilty but 1 that says not guilty and will not change their mind? And does not want to convince the other 11 to vote otherwise . . . .”

The judge gave the jury the modified Allen charge and also told them that, if they hadn't reached a verdict by the end of the day, they'd come back to deliberate more. Jury came back guilty at 5:03pm.

Defendant argues the judge coerced the jury with this instruction. Held: No error.

Second, no error in denying a continuance, even though counsel was only appointed 54 days before trial and, on the Friday before trial, the state gave over statements from a confidential informant. Court states that the case was straight forward, so 54 days was enough and the statements from the informant was made to the defendant's investigator.

Third, sending someone to prison for a decade for selling $20 worth of crack does not violate the 8th Amendment.

State v. Chapman. State appeal of order dismissing capital first degree murder. -- Duplin County, Gregory Chapman.

Defendant shot his pregnant girlfriend (19 weeks pregnant). She had emergency surgery and, during the surgery, her twin  babies were "spontaneously aborted," dying minutes after birth.

Trial court heard from doctors and ruled that the twins were never alive-- the fetus were not viable and they were not born alive as defined at common law, and they did not die of inuries inflicted on them in utero, thus no murder charge could issue.

Held: Trial court erred in ruling that this was a juridictional issue. It was improper, at this stage, for the judge to issue what amounts to a ruling on the merits. Court does not rule on any of the substantive issues.

State v. Derbyshire. Appeal of DWI. -- Wake County, Adam Derbyshire.

HELD: Officer did not have reasonable suspicion to perform traffic stop.

Officer testified his basis for reasonable suspicion were: (1) bright headlights; (2) defendant had a blank stare when he passed him; (3) saw him weave within his lane at least once.

Must have more than just weaving to perform a stop -- either need a whole lot of weaving or other factors to give suspicion. This one didn't have enough.

State v. Evans. Appeal of armed robbery and felony murder -- Durham County, Roger Evans, Jr.

No error in failing to give self-defense instruction in the mandate for felony robbery, as they were given on the assault charges and referenced in the robbery instruction.

Sufficient evidence of attempted robbery because there was sufficient proof of intent and an overt act -- i.e. pointed a gun at people and co-defendant says they planned a robbery..

State v. Fisher. Appeal of involuntary manslaughter conviction. -- Henderson County, Scott Fisher.

Defendant, a teenager, got in a fight at a party--then took the victim out in the middle of nowhere and beat him up victim and left him out on a bridge nearby. The victim called his parents to pick him up. They couldn't find him and he eventually froze to death outside.

Defendant argues that the court should have instructed on foreseeability and that the harm -- freezing to death -- was not a foreseeable outcome of his beating the victim up. 

Court ruled that beating him up and leaving him in the middle of nowhere on a 20 degree night was an act that could foreseeably lead to death. No plain error in the court failing to specifically instruct on foreseeability.

State v. Frady. Appeal of 1d sex offense and indecent liberties. -- Transylvania County, Ralph Frady.

New Trial ordered as state called an expert that said that the child's statement (that Defendant sexually assaulted her by touching her privates" was "consistent with sexual abuse" based on the "consistency of her statements over time, the fact she could give sensory details of the event..."

This is improper witness vouching. An expert can only testify about physical evidence that is consistent with abuse, not that the child's story was consistent. That is an improper expert opinion.

State v. Harwood. Appeal of possession of firearm by felon. -- Buncombe County, Edward Harwood.

Defendant appeals MAR denial of 19 convictions of possession of firearm by felon, arguing that he should only have one conviction for the 19 guns he possessed.

State  v. Garris held that "a defendant who had previously been convicted of a felony could only be convicted of and sentenced one time for the simultaneous possession of multiple firearms on a single occassion."

Held that theree was no legal basis for the MAR, as Garris was not a "significant change in substantive law" and, by pleading guilty, defendant waived his right to assert double jeopardy claims.

State v. Martin. Appeal of attempted 2d rape on motion to suppress issue. -- Polk County, Matthew Martin.

T.H. says she was asleep, when defendant had sex with her and she did not awaken. Afterwards, some of her friends beat him up, including with a metal wrench.


Defendant, 21 years old, was interrogated, while in custody for a probation violation. He was shackled and told that the victim "took a polygraph and passed" and said the Defendant could "help himself" if he confessed. Defendant confessed to having sex with T.H. while she slept.

Afterwards, he was Mirandized and confessed again.

Held: Defendant's post-Miranda confession was involuntary, under the totality of the circumstances. Factors: defendant was in custody, the officer made misrepresentations to the defendant, the officer made promises, and defendant was impaired--he suffers from bipolar disorder.


State v. McCoy. Appeal of assault inflicting physical injury by strangling, simple assault, and 2d rape.-- Cumberland County, Willie McCoy, Jr.

First, no error in the Judge refusing to give an IA report on an officer in the case, whom they decided not to call as a witness (after an in-camera review). Court finds that the information was not material (despite counsel argument that they could have challenged the "integrity of the investigation" with it).


State v. Miller. Appeal of intent to sell/deliver marijuana, mainatining a dwelling, and carrying a concealed gun. -- Rowan County, Michael Miller.

Appeal of denial of motion to suppress marijuana found in his hallway closet. 

Facts: Police responded to a burglar alarm and, while walking around the house, found 2 large ziploc bags of marijuana on concrete steps leading to a side door. Also found a broken window at the back. Believing that entry had been made, he entered the home looking for a suspect and called for a K-9. Later, the defendant's mom showed up with a key and gave consent to search. Found drugs in plain site in the house. Opened a dresser drawer and found more drugs. The dog alerted on a closet, they opened the closet and found more marijuana.

Trial court found that police exceeded their legitimate search for suspects by opening a dresser drawer and suppressed the marijuana in their. Found that the search of the closet was legitimate search for suspects, ignoring police testimony that the bag that the marijuana was in "may have been closed until" the K-9 stuck his nose in it.

First, the marijuana in the closet was not fruit of the poisonous tree of the search of the dresser drawer. Rather, it was just the same justified search for an intruder.

But, remanded to trial court to resolve whether or not the drugs in the closet were in plain view.

Interesting Holding: Found that, if the drug dog opened the bag, it was not in plain view. Treat K-9 officers like regular officers-- they can't move things to create plain view. (This is contrary to precedent the Court discusses from the 6th and 8th circuits).

State v. Oliphant and Hamilton. -- Mecklenburg County, Joshua Oliphant and Derrick Hamilton.

Sufficient evidence of robbery where victim approached by two person, even though only one had a gun.  Sufficient evidence of implied agreement to rob in that other person reached for victim's cellphone.

No plain error in referring to two defendants as "defendants." While it is reversible error in a joint trial to charge in a way that sounds like if one is guilty, all is guilty, calling them "defendants" is not enough. 

State v. Pennell. -- Iredell County, William Pennell, IV.

Defendant may attack juridiction of underlying conviction in appealing a probation revocation. The larceny indictment was defective where it described the property taken as "various items of merchandise."

State v. Summey. -- Buncombe County, Darrell Summey.

In a statutory rape case, jury sent out a note and asked for the first date and age of the victim when she was raped the first time. Court declined to answer and a juror asked if it the court could only charge him with that charge if it were not in corroboration of the age reference. Court committed error when it answered "You're correct", by expressing an opinion regarding the victim's age. New trial.

No plain error in referring to the witnesses as "victims."

State v. Wray. -- Cleveland County, John Wray, Jr.

No error in failing to appoint counsel prior to sending defendant for a competency evaluation. This was not a critical stage and no denial of 6th amendment right to counsel.





Wednesday, July 17, 2013

NC COA Criminal Decisions, July 16, 2013

State v. Gamez. Appeal of sex offense. -- Wake County, Osman Gamez.

First, any error from allowing witness to state hearsay was waived by failure to continue to object. Counsel said, during narrative answer "Well, I'm going to object to what she claimed the brother said." Witness then said, "After they left my brother said why is he touching you ? And I said I just don't I just said I don't know. My brother said you should take care of yourself, but we promised we wouldn't tell anybody about it." Court ruled this objection wasn't preserved because there was no motion to strike, because admissibility wasn't "indicated by the question." WOW. 

Second, no error in allowing expert to testify that the victim had PTSD. First, held that the effective date of the amendments to Rule 702 (adopting Daubert) apply to the date of indictment, not the date of trial. Rules that testimony passes the Frye test.


State v. Gordon. Appeal of common law robbery and assault on a female. -- Iredell County, Carlos Gordon.

Man grabbed a 65 year old lady's purse in the parking lot of a Walmart. She pushed him and he punched her the in face, then stole the purse. Police had no suspect. Found a similar assault occurred at a Walmart six weeks before. Police showed the picture of that guy to the witnesses in a photo array and one picked him out. Jury convicted based on the ID and the prior (where defendant was caught red-handed).

Defendant argues if was error under 404(b) to admit the prior. Here, the similarities were: Walmart parking lot and theft of purse from lone female, within 6 weeks of each other, and black male. Differences were: no assault in first and the first assault happened 20 miles away in a different town.

Court found this sufficient. In case you haven't notice, Rule 404(b) is a JOKE in North Carolina.

State v. Kornegay. Appeal of judgment revoking probation and activating sentence. -- Pitt County, Ibn Kornegay.

Held: It was error to revoke defendant based on new pending charges, where the notice did not include the defendant had committed a criminal offense. Rather the notice simply said the defendant had "been in possession of a firearm" etc. Court was without subject matter jurisdiction to revoke, due to the problems with the notice.

State v. Lee. State appeal of grant of MAR and entry of amended judgment. -- Stanly County, Bobby Curtis.

Defendant's MAR seek application of the Justice Reinvestment Act provisions retroactively to his sentence, reducing his sentence from 90 to 71 months. His plea was for the "bottom of the mitigated range", which was lower under the new guidelines.

The Act states that it only applies to offenses committed after 12/1/2009, thus it was error to apply it retroactively.

State v. Peterson. State appeal from order granting MAR and vacating conviction in first degree murder case. -- Durham County, Michael Peterson.

Trial court granted a new trial based on evidence concerning SBI Agent Deaver's qualifications. Deaver played a determinative role in the outcome of the case, testifying that, due to blood splatter evidence, it could be determined that defendant killed his wife, rather than her dying in a fall. At the MAR hearing, defendant proved that Deaver had misled the jury and testified falsely about his qualification, his bias, and the reliability of his methods.

Held: This was sufficient new evidence that could have made a difference at trial.


State v. Romero. Appeal of order modifying probation and imposing a Confinement in Response to Violation (CRV) under the Justice Reinvestment Act (JRA). -- Johnston County, Lee Romero.

Held: Defendant has no statutory right to appeal an order modifying probation and imposing a CRV.

State v. Stevens. Appeal of assault on a child under twelve and contributing to the delinquency of a minor. -- Wake County, Wesley Stevens.

First, indictment for contributing was not defective.  The indictment says that, on a particular date, Defendant caused a particular juvenile to be in a place or condition where they could be adjudicated delinquent. Defendant argues that this is defective, as it just recites the elements of the crime and doesn't include any specific facts -- like what the defendant did or what the child could have been found delinquent for. Court disagrees.

Second, sufficient evidence of contributing.

(1) the State must show, beyond a reasonable doubt, that Defendant knowingly or willfully caused, encouraged, or aided the juvenile to be in a place or condition whereby the juvenile could be adjudicated neglected. (2) adjudication of neglect requires the State to show, by clear and convincing evidence, that a juvenile is neglected.

Defendant roped his bicycle to the 8 year old juveniles bicycle seat, rode real fast, and then swung his belt at a window and the buckle came off and hit the kid in the eye. They then rode to a store where defendant was drinking. Defendant then rode away and left the kid asleep in a parking lot of a store injured. This was sufficient evidence.

Third, error to allow jury to convict of assault on a child under 12 on a criminal negligence theory. The indictment said "unlawfully and wilfully did assault." Negligence as a theory was not alleged in the indictment. This count should have been dismissed.

Tuesday, July 2, 2013

NC Court of Appeals Decisions, July 2, 2013

State v. Hanif. Appeal of sell/deliver counterfeit controlled substance. Forsyth County. -- Kingg Hanif

 Defendant sold a detective fake vicodin for $4. At arrest, defendant had baggies of Epsom salt. Defendant moved to suppress as irrelevant and allowing statements defendant made to the magistrate and arresting officer that were threatening and made him look bad.

First, held trial court committed plain error allowing officer to testify that the fake vicodin was "tramadol hydrochloride" based solely on visual inspection. Without this, state could not meet it's burden to show that the substance was counterfeit.

Second, no error in admitting the Epsom salt on retrial, as goes to intent and is another fake drug in his possession (fake crack).

Third, no error in admitting the threatening/angry statements, as they are part of the story of the arrest.

State v. Horskins. First degree murder, Pasquotank County -- Shawn Horskins.

Shooting in the street during an argument. Defendant testified that he only shot when the other guy grabbed his gun. Jury convicted.

First, sufficient evidence of first degree murder where some evidence showed defendant kept firing after victim hit the ground and defendant took affirmative acts to hide evidence afterwards.

Second, no prejudicial error in not allowing defendant to testify that he had been told that Mr. Williams (the victim) was in a gang and carried a gun. While this may be relevant to the reasonableness of the defendant's apprehension and use of force, there was no evidence that the defendant knew the victim was Mr. Williams, as he had never met him.


State v. Lowery. Appeal of assault by strangulation. Forsyth County -- William Lowery.

Sufficient evidence.  Assault by strangulation with injury is a class H felony and to prove it the state must show:

  • Strangulation: pressure to the throat sufficient to create difficulty breathing
  • Physical Injury: cuts and bruised on the neck are sufficient
  • Causation: that the injury was caused by strangulation.
Testimony of the victim and the pictures sufficient to prove this, even though defendant also committed other acts of assault that arguably could have caused the injuries.

No proof required that greater injury occurred than would normally accompany strangulation or that the victim was strangled to the point that there was a risk of death.

State v. Nolen. Appeal of revocation of probation, Gaston County -- Corey Nolen.

Defendant violated and revoked for "making her whereabouts unknown to probation, therefore absconding" and failure to pay money.

First, under the Justice Reinvestment Act (JRA) of 2011, probation can only be revoked upon new convictions, absconding, or a 3rd violation of other conditions that were previously punished with brief confinement. The act also added a condition to all probation that absconding including "willfully making whereabouts unknown to the probation officer."

Defendant argues that, while JRA revocation requirements apply to her (they clearly do), the new provision of probation does not as it was never ordered by a court and would be ex post facto to just be added to her sentence (her sentence was from 2010, before the JRA).

Court agrees and remands. Only violated monetary conditions, not the absconding condition.

State v. Pemberton. Appeal of first degree murder conviction, Wake County -- Devonte Pemberton.

First, defendant's IAC claims that counsel admitted all the elements of felony murder under a misapprehension of law are dismissed without prejudice to be filed in an MAR (counsel admitted that defendant was a present participant in a robbery, just denied he was the shooter).

Second, because Pemberton was under 18 and was convicted solely on felony murder grounds, he should be resentenced to life with parole under NC Gen Stat. 15A-1340.19B(a).

State v. Poole. State appeal of dismissal violation of Domestic Violence Protective Order (DVPO), Buncombe County -- Tracy Poole.

Defendant served with DVPO, requiring him to get rid of all firearms. The next day, Sheriff went to his house and found a shotgun. Trial court dismissed, ruling the DVPO was not valid for criminal purposes, as it was entered ex parte.

HELD: Ex parte order entered under 50B is a valid protective order for DVPO purposes. The Supreme Court ruled ex parte orders weren't valid protective orders, and then, in 2009, the legislature amended the statute. Rules that ex parte are valid under the new statute.

State v. Sheppard. Appeal of larceny from a person, felony larceny, and habitual felony, Forsyth County -- Alonzo Sheppard, Jr.

Defendant stole victim's purse out of her shopping cart while she was at the store, while she was grabbing groceries.

First, sufficient evidence of larceny from the person. The purse was under the victim's control, even though she was arms length away getting pickles when he grabbed the purse. Distinguishes from a case where the victim was 4-5 steps away from a grocery cart when the purse was grabbed.

Second, error to sentence for both larceny from a person and felony larceny for the same theft. Further, vacates the felony larceny as the indictment said it was a felony because $1,000 in currency was taken, which it was not.

State v. Storm. Appeal of murder conviction, Buncombe County -- Tyler Storm.

Defendant, 18, called police and told them, after drinking two 4-Loko Beers (12% alcohol), he chopped his sleeping brother up with a sword.

No plain error include the submitted submit diminished capacity and voluntary intoxication instruction in the final mandate (they were given earlier).

No error in allow lay witness to testify that the defendant was "noticeably depressed with flat affect" when he was 12 years old. This lay opinion was rationally based on the witnesses observations and helpful to the trier of fact, as mental capacity was in issue. Further, any error would be harmless.

No error in failing to intervene ex mero motu to prosecutor's closing argument: "Depression might make you suicidal. Depression doesn't make you homicidal."

Thursday, June 27, 2013

NC Supreme Court Criminal Decisions, June 27, 2013


Melendez-Diaz, eviscerated in North Carolina.

State v. Ortiz-Zape.  Holding: Witness testifying that a substance was cocaine based on her "independant analysis of testing performed by another analyst in her laboratory" did not violate the 6th Amendment (reversing COA's unpublished decision).

Reviewing all the lab notes and data from the testing instruments of the other person was enough, even though they were based entirely on testing done by someone else.

Two rules seem to emerge from this case:

1) Expert may testified to testing if he/she performed it or had some, even minor, first hand live-witnessing oversight/supervision at the time the testing was conducted.

 2) A qualified expert may provide an independent opinions based on out-of-court statements in certain contexts (not clearly deliniated by anyone), but never simply to repeat the out-of-court statements.

3) An expert can testify about machine-generated raw data without the presence of the person who pushed the buttons on the machine.

Hudson Dissents.


State v. Brent.COA reversed cocaine conviction based on Melendez-Diaz (in an unpublished decision).

Defendant never objected in the presence of the jury, thus this issue was not preserved. Reversed the COA. Even if he hadn't this was not error under Oritiz-Zape. The testifying expert reviewed three graphs produced by a machine from a sample, which she reviewed and independently concluded was cocaine. This did not violate the confrontation clause.

State v. Brewington. Reversing lower court decis

COA  Decision Post: State v. Brewington. Defendant found guilty of possessing cocaine. Challenge to expert testimony based on Melendez-Diaz grounds (that expert testified to opinions of non-testifying expert about the chemistry of the cocaine). SBI Agent identified the substance as cocaine based solely on testing conducted by a non-testifying agent. Under Melendez-Diaz, this violates the 6th Amendment right to confrontation.
The agent who testified clearly had not personally performed or observed any of the chemical tests she relied on in making her opinion. Nonetheless, under Ortiz-Zape, the witness presented an independent opinion based on her review of all the testing and non of the lab notes/etc. of the other experts were entered into evidence.

Hudson Dissents. 



State v. Craven. Affirmes COA on the Melendez-Diaz issue, relying on Ortiz-Zape, but finds it did not affect the conspiracy convictions, and reinstates those convictions.
COA Decision Post: State v. Craven. Defendant pleaded guilty to sale of cocaine and the court entered a prayer for judgment continued until the subsequent term. In the interim, defendant was convicted of new charges of selling and delivering cocaine. Defendant was sentenced to 16-20 months, running the new and the old charges together.

First, defendant makes a Melendez-Diaz argument that the SBI agent improperly testified about analyses conducted by other agents. There is a 4-part test to determine if the document embodying the analyses of another agent can be admitted:

(1) determine whether the document at issue is testimonial;

(2) if the document is testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant;

(3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert’s report or analysis;

and (4) if the testifying expert summarized another non-testifying expert’s report or analysis, determine whether the admission of the document through another testifying expert is reversible error.

The expert basically just put on the analyses done by others and said he agreed with them. This was a confrontation violation. This error was not harmless, even though a lay witness said she had used cocaine for 20 years and this was cocaine. While this is admissible evidence, it does not have the same impact on the jury as a chemical analysis. As such, defendants sentences (in these 3 counts) are vacated.
 State v. Hough. Per curiam affirmance (3-3, so no precedential value).
COA Post Below: State v. Hough. No Melendez-Diaz error in allowing analyst to testify about analysis conducted by non-testifying expert where her opinion was based on her own independent review and confirmation of the results.
 State v. Hurt.   Remanded on same grounds as Ortiz-Zape.

COA Decision Post: State v. David Franklin Hurt. Caldwell County Appeal from 2d murder conviction. Defendant appeals aggravated sentencing based on jury's finding that the murder was especially heinous, atrocious, or cruel.

Held: Defendant has a right, under Blakely, to confront witnesses against him at a sentencing trial under the 6th Amendment. Applies to all sentencing proceedings where a jury makes a determination of facts that, if found, increase the defendant's sentence beyond the statutory maximum. Trial courts admission of hearsay during the aggravation phase constituted error.

Remand for new sentencing hearing.
State v. Williams.Another reversal based on Ortiz-Zape.

Beasley Dissents.

Tuesday, June 18, 2013

NC Court of Appeals Criminal Decisions, June 18, 2013

State v. Coleman. Appeal of DWI. -- Wake County, Rudolph Coleman.

911 caller said there was a gold Toyota parked at the Kangaroo gas station with a beer in it with a specific license plate. Officers responded and pulled over the defendant in a matching car. Defendant was impaired.

Held: No articulable reasonable suspicion for the tip, as possession of a container of alcohol in a parking lot is not a reliable assertion of illegality.  For tip to provide reasonable suspicion, it must reliably identify the defendant AND reliably assert illegality. There's nothing illegal about having an open beer in a car in a parking lot.

The police officer's mistaken belief that it was illegal to have an open container in a car in a parking lot was not objectively reasonable and doesn't allow the stop, under the recent Heien case (adopting rule that objectively reasonable, but mistaken belief of law violation can give rise to reasonable suspicion permitting a stop).

State v. Dial. Appeal of possession of firearm by felon. -- Chatham County, Paul Dial.

Held: Where defendant took an unusually long time (5-10 minutes) to answer the door at his residence when police were there serving an order for arrest, weapons were known to be in the residence, and then came out of his front door with his hands up but not following directions (deputies knocked him to the grown) --> this gave deputies cause to conduct a sweep of the residence to look for an "individual posing a danger to the deputies," thus making the search legal (when they found some guns). The highlight of this case is the deputy testimony that the open door created a "fatal funnel" that would provide this supposed assailant a clear shot at the deputies.

What a bunch of crap. Why would this guy taking a long time and acting like a jerk give reasonable suspicion that some other person is inside and is armed and dangerous?

State v. Garcia. Appeal of 2d murder conviction. -- Mecklenburg County, Victor Garcia.

Defendant challenges admission of law enforcement statements during his interrogations, where the detectives said they didn't believe him, that he was going to look like a monster if he didn't explain the killing, and that the victim was afraid of the Defendant, as plain error.

Held that this was allowed as providing "context" for the interview.

State v. Howard. Appeal of possession of firearm by felon. -- Cabarrus County, Mason Howard.

Defendant, during traffic stop, was arrested on an outstanding warrant. Police brought drug-sniffing dogs and then found drugs and guns.

First, no error in admitting another officer's testimony that defendant, on a previous occassion, fled from that officer and threw a gun in some bushes. Defendant didn't preserve the issue under 404(b), because counsel initially said he was moving under 404(b), but then the Court asked if he was objecting under 403 and counsel said yes. Then appellate counsel only argued under 404(b).

Appeal dismissed.

Thursday, June 13, 2013

NC Supreme Court Decisions, June 13, 2013

State v. Boyd. Per curiam reversal.

Decision Below: Appeal of 1st degree burglary, second degree kidnapping, sexual battery and habitual felon, on remand from the Supreme Court. Found it was plain error for the court to instruct on 2d kidnapping on a theory of removal, because it was unsupported by the evidence. Defendant was indicted on kidnapping on a theory of confining and/or restraining. Judge instructed also on removing. Being forced to sit on the defendant's lap does not constitute removal for kidnapping purposes. This was still plain error, even though court instructed on multiple theories of kidnapping.

State v. Kochuk. Per curiam Reversal.

Decision below: 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.


State v. Land. Per curiam affirmed.

Decision Below: 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.

State v. Rhodes. Appeal of post-conviction relief under 15A-1415(c).

In a drug case, after defendant found guilty, his father came forward and stated the drugs were his. The court granted a new trial based on newly discovery evidence.

HELD: The evidence was available to defendant before his conviction and the statement was not newly discovery under 15A-1415(c).

The father invoked the 5th Amendment at trial. Nonetheless, the information could have been made available by other means. Defendant testified, but didn't say they were his dad's and the defendant didn't cross a detective on the father's possible ownership.

Tuesday, June 4, 2013

NC COA Decisions, June 4, 2013

State v. Burrow. Appeal of trafficking oxycodone conviction.-- Jonathan Burrow, Lincoln County, Judge Beal.
 COA originally ordered a new trial on Sixth Amendment grounds. Post here: State v. Burrow. Appeal of trafficking in Oxycodone. -- Jonathan Burrow.

First, it was plain error to admit the SBI report of an analyst who did not testify into evidence, as violating the confrontation clause. A detective read the report into the record, finding that the substance was Oxycontin. This violated the confrontation clause, as the detective had no independent expert basis for making the statements. This was prejudicial, as no other evidence was presented showing the substance was a controlled substance. Without the report, there would have been a non-suit.  New trial.

Judge Hunter dissents. Said it was harmless, as defendant elicited the same info on cross-examination.
State then added a notice of its intent to introduce the report, not previously provided in the record. NC SC remanded for reconsideration in light of the amended record. Under N.C. Gen. Stat. 90-95(g), State provided notice of its intent to enter the report and the Defendant did not object. Under statute, this waived the Sixth Amendment right. Notice is deemed sufficient, even though there is no proof of service in the file. The filing just notes that a copy was faxed and placed in the attorney's box. Even though this doesn't meet standards of civil procedure, it is sufficient

State v. Davis. Appeal of habitual felon status. -- Antoine Davis, Wake County, Judge Hight.

Defendant appeals decision that his 1994 Connecticut Conviction for 2d burglary could be used to determine habitual felon status. Plea included provision that he could appeal the decision allowing use, but under law, he cannot. Defendant argues to void plea based on his inability to appeal. Denied.

State v. Facyson. Appeal of second degree murder conviction. -- Saquan Facyson, Durham County, Judge Hight.

First, sufficient evidence of second degree murder.  Defendant was present in a car that was involved in a drive-by. Sufficient evidence that Defendant acted alone or with others in the drive by.

Second, trial court erred in sentencing defendant in aggravated range based on jury finding yes to this question: "Do you find from the evidence beyond a reasonable doubt that the defendant joined with more than one other person in committing the offense for which you have unanimously found the [d]efendant guilty and that the defendant was not charged with committing a conspiracy as to this offense?" Under the law, evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation. NC Gen. Stat. 15A-1340.16(d). Defendant was possibly convicted on an acting in concert theory (the jury was instructed on multiple theories). The verdict sheet did not require the jury to state it's theory. As such, it could have found based on acting in concert, making this aggravating factor inappropriate.

Remanded for re-sentencing without that factor.

State v. Gentry. Appeal of conspiracy to sell/deliver oxycodone, possession of oxycodone, selling with 1000 ft of a park, and habitual felon. -- Lucas Gentry, Person County, Judge Ridgeway.

Counsel moved to withdraw and this was denied. Defendant asked to proceed pro se, rather than having his counsel. Defendant argues that new counsel should have been appointed, due to breakdown in communication. While Defendant did state his mistrusted counsel, held that no sufficient showing that there was good cause to remove counsel.

State v. Hernandez. Appeal of drug offenses. -- Rene Hernandez and Dawn Davis, Buncombe County, Judge Gavenus.

No error in denying motion to suppress. First, at trial, Defendant's only challenged the stop, not the unlawful extension of the detention, as such that issue is waived. Second, IAC claim is dismissed without prejudice.


State v. Marley. Appeal of DWI -- Michael Marley, Caldwell County, Judge Morgan.

Sufficient evidence where BAC was above .08, even though he blew .09 and the standard error on the machine was .02. 

State v. Rogers. Appeal of first degree murder conviction and other charges. -- Kevin Rogers, Bladen County, Judge Hill.

First, no problem with short form indictment for murder.

Second, sufficient evidence for first degree murder (for p&d and lack of provocation) where ear-witness said they heard the victim beg for her life and was shot eight times.

Third, sufficient evidence for armed robbery. Even though the stealing occurred after the murder, it was part of a continuous chain of events. Also sufficient evidence of conspiracy where witness said they agreed to commit the robbery before going to the house.

Fourth, not plain error to instruct, for 1st degree burglary, that the underlying offense was burglary, where the indictment said the underlying offense was larceny, since larceny is a lesser included of burglary and the instruction benefited the defendant, requiring the state to prove more, rather than less.

Fifth, no error in failing to submit 2d degree murder. Given evidence of begging and multiple gunshots, this was adequate. Defendant did not put on affirmative evidence of 2nd, rather just challenged this witnesses credibility. As such, 2d murder was not appropriate to submit.


State v. Tucker. Appeal of embezzlement. -- Dennis Tucker, Guilford County, Judge Albright.

Defendant received a $2,000 cash payment when making a delivery in Arizona, bought a plane ticket back to NC with some of the money (his CDL expired), then quit without ever giving it to his boss. 

First, no error in allowing the DA to amend the indictment to read "employee or agent" rather than just "employee" right before trial. These are essentially interchangeable and did not substantially alter the crime charged.

Second, defendant challenges jurisdiction, as the funds were converted while he was in Arizona. Crime occurred when defendant failed to deliver the money in NC, thus there is jurisdiction. This is premised on the "duty to account" doctrine. You can go after embezzlement in the state under which the individual had a duty to account.

Tuesday, May 21, 2013

NC Court of Appeals Criminal Decisions, May 21, 2013

State v. Bean. Appeal of first degree murder conviction. -- Tamara Bean, Randolph County.

COA, in unpublished decision, found the case free of error. NCSC remanded for reconsideration in light of State v. Lawrence and State v. Campbell.

First, defendant argues the State used the Defendant's constitutional right to silence against her as impeachment and as substantive evidence of guilt. State put on witnesses at the hospital that say Defendant never mentioned anything about self-defense. Found that even if this was error, it was harmless because the Defendant told nurses at the hospital: "I killed my husband just because I finally had enough of him" and "I'm guilty."

Second, defendant argues State improperly commented on her right to plead guilty in closing. In closing, the State said, despite mounting evidence , the Defendant could "still say I didn't do it." This was not improper.

State v. Bell. Appeal of robbery with a dangerous weapon (RWDW) -- Mario Bell, Rutherford County.

Defendant testified that he robbed an office with an unloaded gun, taking money from the cash drawer.

First, sufficient evidence of robbery with a dangerous weapon. Defendant's testimony that the gun was unloaded was some evidence that it was unloaded, but  a jury could have disbelieved this testimony and believed the gun was loaded. Under the law, a gun is presumed loaded/functioning, unless Defendant can prove otherwise.

Second, no error in failing to instruct the jury on "mere possession" of a firearm for robbery, as here the evidence shows the defendant wielded the weapon and threatened to use it.

Third, emotional victim testimony, even if error, was harmless due to overwhelming evidence of guilt.

State v. Cathcart. State appeal of suppression of Intoximeter (in DWI)-- John Cathcart, Forsyth County.

 Superior Court suppressed intoximeter results. The procedure for these is to do 2 tests and that they are valid if they are within .02 of each other. Defendant blew twice, getting a .10 and then an "insufficient." Cop had him blow again, in which he got a .09. Defendant successfully argued that the 2 blows had to be in a row, on the same "test record ticket", not one on each ticket.

Under 20-139.1(b3), the results are admissible only if "two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than .02.  Held: The two samples were "consecutive," even though there was an "insufficient" in between the two and they were on two different tickets.
 
State v. Coleman. Appeal of trafficking in heroin. -- Anthony Coleman, Mecklenburg County.

Held:  Plain error to fail to instruct jury on the law of guilty knowledge, in accordance with the pattern jury instruction, as defendant contended he did not know the true identity of what he possessed.


State v. Gardner. Appeal of motion for post-conviction DNA testing in old rape case. -- Edward Gardner, IV., Pitt County.

First, standard of review for denial of DNA testing is to review law de novo and facts on abuse of discretion standard.

Second, to be appointed counsel, a pro se defendant must prove that the DNA is material to Defendant's case. Defendant's conclusory statements (that the DNA would prove he didn't do it) were insufficient.


State v. Hill. Appeal of felony possession of dangerous weapon by prisoner, communicating threats, carrying a concealed weapon, injury to property and habitual felon. -- James Hill, Jr., Catawba County.

Defendant threatened some guards with a razor blade (from a pencil sharpener) and part of a nail clipper. He had also cut up his mattress. He was sentenced to 10 years.

First, no non-unanimous verdict instruction problem where Defendant supposedly threatened 3 guards, but only charged with specific threat to one of the guard. Defendant argues jurors could have differently found threats to different guards, risking a non-unanimous verdict. Defendant did not request such instruction, nor raise the non-unanimity issue at trial. No plain error.

Second, sufficient evidence of communicating threats. Defendant argues that the Deputy  didn't subjectively believe that he was going to "kick her ass." Court finds this without merit.

Third, sufficient evidence of carrying a concealed weapon. The razor blade that Defendant left in an adjoining room was "about his person" because, at one point that day, he was sitting in the day room.


State v. Ingram. Appeal of first degree murder. -- Windsor Ingram, Wayne County.

First, sufficient evidence that Defendant was the perpetrator, where witness identified Defendant from a lineup that was a little shaky. This goes to credibility, not sufficiency of the evidence.

Second, no error on failing to instruct on second degree murder. Defendant did not request and the evidence here of multiple shots to the back and left him to die, suggesting time to premeditate and deliberate.

State v. King. Appeal of first degree murder. -- Michael King, Mecklenburg County.

First, no constitutional violation in denying defendant's right to appeal. Defendant sought a continuance to hire a DNA expert. Although defendant had the discovery on June 9, 2011, counsel did not review it until March 5, 2012, a month before trial. Defendant argued he would be denied effective assistance of counsel if no continuance was granted. Held it was not abuse of discretion to deny the continuance, based on lack of diligence of counsel. Can raise the IAC again on post-conviction.

Second, no error in refusing to instruct on credibility of drug abusers. Law on this is: " Where an instruction concerning the credibility of a witness is requested, “the trial court must give the instructions requested, at least in substance, if they are proper and supported by the evidence.” Defendant proposed instructions concerning the impairment of witnesses. Held that these instructions were implicit in instructions already given on the credibility of witnesses.


State v. Leach. Challenge of denial of write of habeas corpus. -- Reginald Leach, Cabarrus County.

Defendant challenged denial of parole.  Defendant failed to provide adequate factual information that he was entitled to release under the parole contract.


State v. Phillips. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), kidnapping, and violent habitual felony. -- Anacin Phillips, Craven County.

Defendant's girlfriend testified that he beat her, held her down and cut off her clothes with a knife.

First, the court referring to her as "the victim" in instructions did not violate N.C. Gen. State. 15A-1232 that forbids judges from expressing an opinion as to an issue of fact. "Considering the fact that our courts have on many occasions stated that the use of the term “victim” in jury instructions is not an expression of opinion, and considering the horrifying facts of the assault in the instant case, we can discern no prejudicial error as a result of the trial court’s use of the word “victim” to identify the State’s prosecuting witness during its jury instructions."

Second, Court erred in counting an Ohio prior conviction for "intentional shooting, cutting, or stabbing" the same as the North Carolina crime of AWDWIKISI. These are not substantially similar. Should have been sentenced as a level IV.


State v. Primus. Appeal of conviction for attempted felony larceny and injury to personal property.-- Micheal Primus, Scotland County.

Defendant stole an A/C unit off a trailer. Got caught by a neighbor, and left it at the scene.

First, defendant argues insufficient evidence of attempted larceny, as this was actually a completely larceny. However, where there is sufficient evidence for the greater offense, the defendant is also guilty, as a matter of law, of all lesser included offenses.

Second, defendant challenges judges instruction that "wires and piping connected to an air conditioning unit are personal property," arguing that that was a factual issue for the jury. This was harmless.

Tuesday, May 7, 2013

NC Court of Appeals Criminal Decisions, May 7, 2013

State v. Caudill. Joseph Caudill appeals first degree murder case.

First, defendant challenges admission of his confession under 15A-501(2) which requires a person to be taken before a judicial official "without unreasonable delay" after arrest. Defendant was arrested at 9:00am, transported, then sat in a holding cell for a few hours. He was interviewed at 1:59pm. He was taken before a magistrate at 2:53pm. This delay between his arrival at the jail and being taken before a magistrate was not an "unreasonable delay."

State v. Gerald. Johnny Gerald appeals his conviction for kidnapping.

The defendant received ineffective assistance (IAC) when his counsel failed to timely move to suppress evidence seized during a warrantless search. The search and seizure was patently unconstitutional--a deputy entered, without a warrant, the defendant's home and collected evidence along with the victim.

State v. Greenlee. Brad Greenlee appeals convictions of obtaining property by false pretense and habitual felon.

Defendant pawned numerous items matching descriptions (and some matching serial numbers) of items reports stolen from cars.  Defendant told police, on arrest, that he was a crack dealer and traded crack for the items. Defendant further said that "he didn’t care whether [the items people would bring to him] were stolen or not, but he would take it if he thought he could make a profit off of it."

First, sufficient evidence of OPFP.  Defendant challenges that two of the items were not proven to be stolen. 1)a TomTom, had a a different model type on the sales inventory (from the pawn shop), but the same serial number. This was sufficient as to that item. 2) a Tascam 8-track had a different serial number as reported and on the pawn receipt. This was a rare item, however, and was thus sufficient evidence on that item.

Second, insufficient evidence of conspiracy on items sold by another person.  There was no evidence presented that defendant was present or near enough to render assistance when his friend pawned those two items. Reverses on those 2 convictions.


State v. Heavner. Brent Heavner appeals convictions for assault on a government official and malicious conduct by a prisoner (spitting at cops) (he got sentenced to 6 years).

Defendant, drunk, during arrest for threatening his grandmother, was assaultive with the deputies, spit at them, and was generally uncooperative.

After conviction, it was learned that the mother of the Defendant spoke extensively with a juror, during the trial, about defendant's mental health and substance abuse problems. The juror stated that he didn't take any of this into account in rendering the verdict, so the Judge didn't set it aside.

First, no error in multiple counts of "malicious conduct," finding the legislature did intend each act of spitting to be a count (rather than just one for the whole transaction." (defendant argued, analogous to assault cases of multiple gunshots being a single, rather than multiple assaults)

Malicious conduct by a prisoner, N.C. Gen. Stat. 14-258.4, reads: "Any person in the custody of . . . any law enforcement officer, . . . who knowingly and willfully throws, emits, or causes to be used as a projectile, bodily fluids or excrement at a person who is an employee of the State or a local government while the employee is in the performance of the employee’s duties is guilty of a Class F
felony. . . ." [Yes, as of 2011, spitting at guards is a class F felony, the same class as Assault Inflicting Serious Boidly Injury, Assault with a Deadly Weapon on a LEO, Involuntary Manslaughter...]

Second, no error in failing to set aside verdict after learning of the juror misconduct.  Court held that the fact the juror said it didn't affect his verdict could not be considered (and shouldn't even have been elicited) in determining the issue. Nonetheless, found that any of this information was harmless to be heard by the juror, as nothing clearly indicated the juror knew the woman was the mother of the defendant, as she didn't use his name or give details of the case.

State v. Macon. Madisa Macon appeals DWI.

At retrial, after a hung jury, judge instructed that the jury could consider defendant's refusal to take a breathylzer as evidence of guilt, even though a different judge ruled differently at the first trial.

Held: Didn't violate collateral estoppel or the rule that one Superior Court Judge cannot overrule another in this circumstance.

First, upon ruling of a mistrial, all the findings/orders in the first trial are legally non-existent. Thus, the rule against overruling other judges does not apply.

Second, collateral estoppel only applies to the issues of ultimate fact determined by a final judgment. Here, there was no final judgment and collateral estoppel does not apply.

Finally, court found there was sufficient evidence of refusal to give the instruction.

State v. Norman. Kenneth Norman appeals 2d rape and sex offense convictions.

Held: sufficient evidence of rape where victim, drunk, testified that she told defendant no, had avoided his sexual advances all night, and she was raped. Victim's mother arrived to find the victim hysterical and her clothes in disarray.

No error in failing to submit attempted rape where clear and positive evidence of intercourse.

State v. Thomas. Jeffry Thomas appeals trafficking conviction.

Held: No plain error not to instruct on defense of entrapment. To prove entrapment, must show that police acts of persuasion, trickery, or fraud induced the defendant to commit a crime that he was not predisposed to commit. Defendant, who was addicted to pain pills and had bought them from this same friend before, got a call from a friend offering him 14 pills for $80, which he bought. He then tried to get his money back, as the pills were different than the usual pain pills he bought. His friend wouldn't take the money back. This was not sufficient evidence to warrant an entrapment instruction.

This is sadly "trafficking" in North Carolina--14 pills for personal use. Defendant sentenced to 6 years.


State v. Threadgill. Michael Threadgill appeals sentencing record level.

First, no error in designating South Carolina conviction for "Financial Transaction Card Theft" as a felony. State has the burden, by the preponderance of evidence, to show the out-of-state crime is a felony. Here, the DCI printout listed it as a Class I Felony. That was sufficient evidence.

Second, 15A-1340.11(7) is constitutional. This statute defines a prior conviction as: "A person has a prior  conviction when,  on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime[.]"

Here, defendant was sentenced for another crime, after the date of offense of this crime, creating a situation where the "Defendant [was] facing a greater sentence at the time of sentencing than he faced on the date of the offense." Defendant challenges this as an ex post facto violation. Held that this was not an ex post facto problem.

State v. Tindall. Holly Tindall appeals probation revocation.

Held: Trial court lacked jurisdiction for the probation violation because the violation found was not alleged in the violation report. She was revoked for having new charges, the violation only mentioned drug use. Oops.

State v. Torres-Gonzalez. Jose Torres-Gonzalez appeals conspiracy trafficking cocaine charges.

First, search warrant for defendant's home was valid. It did not simply have conclusory statements, but laid out facts that would support a belief that contraband was in the residence.

Second, sufficient evidence of conspiracy to traffic in a controlled by where Defendant road with the guy who set up the deal with the cops, made calls to the cops to tell them where to come, and picked up the drugs for the sale.

Third, not improperly inconsistent jury verdicts where jury acquitted of trafficking cocaine, but convicted of conspiracy to traffic cocaine. "A verdict is legally inconsistent or mutually exclusive “when [it] purports to establish that the defendant is guilty of two separate and distinct criminal offenses, the nature of which is such that guilt of one necessarily excludes guilt of the other." A mere flaw in the jury's logic is not enough. While the verdict is inconsistent, it is not legally contradictory.

No error.

State v. Vaughn. Keisha Vaughn appeals AWDWIKISI case.

Fight after club between guy and girl over girl leaving with another guy. Victim and defendant had a fight. She got a knife out of her car and went back to defendant. Defendant "charged her like a bull" and she stabbed him.

The judge instructed the jury that Defendant was not entitled to the benefit of self-defense if she was the aggressor in her altercation.

Held: Plain error where judge instructed on first aggressor, where all the evidence showed the victim "lunged at the defendant" before she was able to initiate any action.

State v. Webb. Ledonta Webb appeals probation revocation.

Defendant challenges revocation, as the lawyer that represented him was not officially appointed and the court failed to follow the IDS rules on appointment. Defendant failed to raise constitutional objections in his initial brief, as such, he must show prejudice (because this is just a statutory claim). Any error, if there was any, was not prejudicial.

State v. Williams. State appeals finding of extraordinary mitigating in case of Eric Williams.

Defendant pleaded guilty to sex offense. The Court, on its own motion the day after sentencing, filed and granted it's own MAR, and found extraordinary mitigation and entered a  suspended sentence (vacating the active sentence imposed the day before). The State appeals. Defendant (20) charged with statutory sex offense after trading cigars to a 14 year old for oral sex, not knowing her age.

First,  trial court gave sufficient notice of it's sua sponte MAR by stating the grounds in open court within 10 days of the sentence.

Second, court's findings of extraordinary mitigation were improper. Two of the findings, the defendant's mental state and passive role, are regular mitigating factors. Two of the findings were not appropriate: (1) the vicitm's consent is not approoriate given the nature of the offense; and (2) the defendant's involvement being limited to the "physical reaction to her ministrations" is not accurate, as the defendant also (in addition to receiving oral sex) asked the victim to lift up her shirt and show her breasts.

Remanded for resentencing.

Tuesday, April 16, 2013

NC Court of Appeals Criminald Decisions, April 16, 2013

State v. Noble. Transylvania County. Julie Ann Noble appeals involuntary manslaughter conviction.

 Defendant hosted parties for her sons and their friends, providing alcohol to the minors and allowing the minors to bring their own alcohol. The minors would play drinking games/etc. in the presence of the adults. One night, a minor drank himself to death at defendant's house.

First, sufficient evidence for involuntary manslaughter. Elements are: (1) an unintentional killing; (2) proximately caused by either (a) an unlawful act not amounting to a felony and not ordinarily dangerous to human life, or (b) culpable negligence. There may be more than one proximate cause of
death, and criminal responsibility attaches so long as one of the proximate causes is attributable to a criminal act of the defendant.

Here, the unlawful act was providing the bourbon that the minor drank, even though there was no evidence that the defendant directly gave the alcohol to the minor.

Second, no 404(b) error showing that defendant often provided alcohol to minors and in the past had directly offerred alcohol to the decedent. These acts were in close temporal proximity to the charged conduct and sufficiently similar to allow admission. The prior acts were relevant to knowledge and the defendant's plan to make an environment where minors could drink alcohol.

State v. Quick. Cumberland County. State appeals trial court order suppressing statements made by defendant, Ishmael Lamar Quick in breaking and entering case.

At 12:32pm, Defendant requested an attorney. Defendant called and couldn't reach his attorney, but told police he still wanted an attorney. On the way to the jail, the Detective said he was going to be serving more warrants and that an attorney wouldn't help with the warrants. Defendant said, "We need to talk." Was taken back to interrogation and signed a Miranda waiver then made statements.

Under Miranda, once the right to counsel is invoked, all interrogation must cease, unless the suspect initiates further communication. Here, the Detectives statements that he was going to serve more warrants and a lawyer wouldn't help with that was interrogation -- statements made by police likely to elicit incriminating responses. Defendant's statement, "We need to talk" was in response to the state's questions and wasn't defendant initiated communication.

State v. Ragland. Johnston County. Joseph Ragland appeals 2d rape, sex offense, and sexual servitude conviction.

First, error for DNA expert -- Sharon Hinton -- to testify that DNA evidence could not have come from "no one else in the world other than defendant, " citing McDaniel v. Brown, but not plain error due to overwhelming evidence of guilt. McDaniel called this the prosecutor's fallacy--assuming random match probability is the same as the probability that the defendant was not the source.

Second, no object preserving foundation issues relating to chain of custody issues on evidence.

Third, no error for doctor to testify that "Based upon my fundamental knowledge in this area, my experience in treating patients, and my evaluation of this particular patient and her family as well as my review of all of the investigative records and the medical records in this particular case, it is my
medical opinion to the degree of reasonable certainty that the history provided in this case, the behaviors that were described about this child and the DSM-IV diagnoses that she had as well as the laboratory findings and the physical exam findings of this patient were consistent with those types of findings seen in victims in child sexual abuse and sexual assault." Case law says experts can testify that the child's profile is consistent with sexaul abuse, if properly qualified. The fact that the exam by the expert in this case took only an hour does not make her unqualified to so opine.


State v. Rouson. Writ of certiorari on search issue denied.

State v. Steen. Lincoln County. Appeal by George Michael Steen on sex offense charge.

Defendant foster parent raped one of his wards. After being moved to a new foster home, the boy told his new family of being sexually assaulted by defendant in the shower. The boy testified to these acts at trial. A social worker also testified, without objection, the the boy exhibited behaviors "consistent with children who have experienced sexual abuse." She also testified that the boy didn't lie any more than other children and that he showed he knew the difference between the truth and a lie.

First, sufficient evidence.

Second, state called a polygraph examiner to describe his interview with the defendant (a polygraph was not discussed). No plain error in failing to give a limiting instruction when he was introduced as a polygraph examiner for the SBI. No plain error in allowing him to testify that he asked defendant "what he thought should happen to a person who had done something like this to a child" and defendant said, "he should get a second change," especially since defendant testifed to similar statements during his testimony.