Friday, January 25, 2013

NC Supreme Court Criminal Decisions, Jan. 25, 2013

State v. Carver. Per curiam affirmed.

Here's what I wrote about the COA decision:

State v. Carver. Gaston County. 1st Degree Murder. LWOP.

Victim found dead beside her car on the shore of the Catawba River. Defendant and his cousin were fishing close-by at the time the victim was discovered and near the time she was strangled to death. DNA in the car matched Carver and his cousin's profile. Carver denied ever touching the car. Defendant found guilty of 1st degree murder. Defendant described the victim as a "little thing," even though he maintained he'd never seen her.

First, this was sufficient evidence.

Second, during deliberations, the jury asked, "Are we still to consider acting in concert?" They were not instructed on this. Instead of saying "no," the court, without objection, just re-read the instructions. This was not error and not preserved.

Hunter dissents, saying there was not sufficient evidence. Cannot reasonably infer guilt from the circumstantial evidence of touch DNA, which is less reliable, on the outside of the car. His cousin's touch DNA was found inside the car. Wasn't found on any ligatures.

Tuesday, January 15, 2013

NC Criminal Decision, Jan. 15, 2013

State v. Broom. Alamance County. Appeal of first degree murder, kidnapping, and AWDWIKISI convictions. -- Robert Broom.

Defendant shot his pregnant wife in the stomach, after she refused to have an abortion.  The doctors forced delivery and the child lived on a ventilator for 4 days, then breathed on her own for awhile, but eventually died of "necrotizing enterocolitis."

First, defendant argues not guilty of 1st degree murder based on premeditation and deliberation. He argues could not have P&D'd to kill the child, as the child hadn't even been born when she was shot. Further argues that the gunshot was not the proximate cause. While killing a viable unborn fetus cannot be a basis under 14-17, that is inapposite to this case because the child was actually born and lived. The court held there was substantial evidence to show that his actions caused the injuries prior to birth that killed the child, once born. That was sufficient evidence of foreseeability for proximate cause analysis.

Second, shooting his wife in the stomach was sufficient evidence of intent to kill for the AWDWIKISI.

Third, no error in denying defendant request for instructions that the court would give on fetal life before conducting jury selection. Judge wouldn't allow the defendant to question jurors on issues of when life begins or abortions. No abuse of discretion or prejudice.

Fourth, no error in failing to instruct on second-degree murder. Defendant's defense at trial was that victim shot herself. No evidence presented negating intent, thus no error.


State. Claxton.  Mecklenburg County. Appeal of prior record level calculation. -- Ernesto Claxton.

Challenges finding that out-of-state convictions were substantially similar to NC crimes.

First, the NY DCI was sufficient evidence of the out of state conviction, even though it had slight differences from the NC DCI (different dispo dates for one offense and inclusion of wrong middle initials in one).

Second, defendant argues that "3rd degree drug sale" and "5th degree drug sale" convictions were substantially similar to NC sale statutes that are class G felonies. Court reviewed the statutes and found them substantially similar, even though the drug schedules set out were not identical.

State v. Gardner.  Iredell County. Appeal of prior record level calculation. -- Julie Gardner.

Defendant appeals calculation of prior record level. Despite her stipulation to the prior record, this did not stipulate to the record level calculation from this record, which was completed by the court.

The court wrongfully gave her an extra point for prior conviction of flee/elude arrest. While she was convicted of that, it was consolidated for sentencing with AWDW on a government official, a higher offense. Because of this, she should not have gotten the extra point. 

Remanded for resentencing.
 
State v. Garrison.  Durham County. Appeal of habitual misdemeanor assault convictions. -- Walter Garrison.

Defendant argues plain error in court failing to instruct that the jury had to find that the assaults resulted in injury. 

For a misdemeanor assault to serve as a basis for habitual misdemeanor assault, there must be a physical injury. For assault on a female, there is no requirement of proof of injury.

Judge did not instruct the jury that they had to find the underlying assaults to have caused injury. Such error was harmless, as there was overwhelming evidence that the assaults resulted in injury (broken rib).

State v. Hoskins.  Mecklenburg County. Appeal of habitual felony conviction for failure to register as sex offender.  -- Archie Hoskins.

State, during sentencing, put on evidence of a 1972 and a 1978 felony conviction. During the trial, they put on evidence of a 1987 felony conviction. Defendant challenges, saying that the state only proved 2 conviction. However, Court held that the state could rely on the 3rd conviction that was proven during the underlying offense trial phase.

State v. Jones.  Johnston County. Appeal of probation violation revocation. -- Preston Jones.

Defendant revoked for failure to complete community service, keep curfew and pay moneys. Court revoked under the Justice Reinvestment Act, finding two prior 90 day revocations.

Under JRA, a person can only be revoked if they: (1) abscond; (2) get convicted of other offenses; or (3) have 2 prior 90 day revocation.


This finding was not supported by the evidence. However, this appears to be a clerical error. Rather, he was revoked for conviction of other criminal offense, which was part of a prior violation report.


State v. Lanford.  Cumberland County. Appeal of felony child abuse, assault with a deadly weapon, sex offense, indecent liberties, strangulation, and malicious castration. -- Todd Lanford.

First, sufficient evidence for malicious castration. Elements are permanent injury to the "privy member", done with malice and the specific intent to maim or disfigure the privy member. Here, there was a 2 1/2 cut on the child's member. Defendant challenges proof of intent

Victim at trial said the injury occurred by a kick, but previously told police it done with a knife. Under either set of facts, a jury could have found intent.


State v. McKenzie.  Duplin County. Appeal of Superior Court order reversing dismissal of DWI. -- Bobby McKenzie.

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. Sanders.  Beaufort County. Appeal of calculation of record level using out of state assaults. -- Rondell Sanders.

On the computer printout of history, defendant had two out-of-state convictions for "theft of property" and "domestic assault." The judge determined these were similar to class 1/A1 offenses in NC and gave him points for these two convictions.

To make this determination, the trial court must compare the elements of each offense and find it substantially similar to a class 1 or A1 NC misdemeanor offense.  The relevant statutes were not provided or reviewed by the judge. Rather, the court simply compared the punishments offered in Tennessee for the offenses. This was inappropriate.

Remanded for a proper comparison of the elements of the crime with NC offenses.

State v. Wilkes.  Moore County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), child abuse, and AWDWISI. -- Timothy Wilkes.

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.

State v. Wilson. Forsyth County. Appeal of DWI.-- Kelvin Wilson

Superior Court suppressed evidence of illegal blood draw and dismissed the case for constitutional violations. The state appeals.

Although the court could have suppressed the evidence, it was improper to dismiss the charge.

Under 15A-954, the court must dismiss if: "The defendant's constitutional rights have been flagrantly
violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution."

While a constitutional violation did occur (leading to suppression of the blood evidence), defendant cannot show he was irreparably prejudiced.