Tuesday, March 19, 2013

NC Court of Appeals Decisions, March 19, 2013

State v. Combs. Appeal of child rape and sex offense convictions.

First, sufficient evidence, where child testified he put his "manhood inside her middle hole." this is enough and not too vague.

Second, no error in providing written jury instructions, on request to the jury, despite a juror previously indicating he could not read. No error in simply providing them to the jury, rather than providing them in open court. 15A-1234(d) requires that all "additional jury instructions" be given in open court. This does not include written copies of oral instructions already given.

Third, not plain error to instruct on theory of sex offense that may not have been supported by the evidence. Here, court listed all sex acts forbidden for 1st degree sex offense, including cunnilingus. There was no evidence of cunnilingus. Nonetheless, due to overwhelming evidence, no probability a new trial would lead to a different verdict.

State v. Davis.Appeal of 2d murder conviction.

First, no error to instruct jury on flight where, the night of the shooting, defendant didn't return to his aunt's house, where he was visiting, and was located three months later in Florida, where his home was. This was sufficient for the instruction.

Second, held that, for sentencing, his Georgia conviction for "theft by taking" was not substantially similar to North Carolina


State v. Galloway. Appeal of firing into an occupied vehicle in operation (class D).

First, indictment was defective for class D, since it didn't include the words in operation. Was only effective for class E firing into an occupied vehicle.

Second, held there was sufficient evidence, even though no bullet struck the car and it was "virtually impossible" for a bullet to have passed through the cabin of the vehicle, based on where people were standing. Victim testified that, after he proceeded through the intersection, leaving the defendant behind him, he saw defendant pull out a gun and that his windows were down. Thus a jury could "reasonably infer" that the bullet passed through the car (from behind? really?)

Remanded for entry into the lesser offense.


State v. Hinton. Appeal of AWDWIKISI and AWDWIK.

State put up the victim of a shooting to say the defendant did it. He said the defendant did it because he, the victim, was in a relationship with the defendant's aunt. State also put up a bunch of gang evidence, because a red bandanna was found at the scene.

First, trial court erred in allowing the state to provide testimony about gang activity in Elizabeth City in this case, as nothing about the shooting showed it was gang related. Found that this was plain error, as there was only one witness suggesting defendant's guilt.

Second, trial court erred when jury requested to review testimony, indicating that it was not in a form they could review (rather than exercising discretion one way or the other on the issue).

New trial.

State v. James. Appeal of kidnapping and armed robbery conviction, based on acting in concert theory.

First, sufficient evidence where defendant was present at the scene (when his cousin put a gun on people and forced them into the car), got in the car, during a police chase yelled "keep driving" and pushed one of the victims to the floor of the backseat.

Second, no error in refusing to discharge juror who was heard saying, during a break, "Maybe I should bring my gun so that everyone feels what it would feel like, and I've got it in my car."  Defendant did not object and made no motion for a mistrial.

State v. Rollins. Appeal of 1d murder, attempted RWDW, and felony breaking and entering.

First, no error in admitting a witness's statements from defendant's Alford plea at trial (after events brought it back to court), based on prior testimony exception. Given that it was an alford plea, defendant had a substantial motive to cross the witness (as required for the prior testimony exception).

Second, no confrontation clause problem for prior testimony exception (for the same cross reasons).

Third, no confrontation problem where police officer said he found a knife in a field after talking to other inmates who said that's where defendant left it, as it was not offerred for truth, but to explain why he went to the field.

Fourth, admission of the knife was relevant, even though it was found in a field 4 years after the murder and had no physical evidence on it linking it to the case.

State v. Seelig. Appeal of convictions for obtaining property by false pretenses.

Defendant convicted for knowingly selling gluten filled bread as "gluten-free bread".

First, confrontation rights not violated when witnesses were allowed to testify from federal penitentiary by closed-circuit internet broadcast. No plain error.

Second, indictments were sufficient that read, "The defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the products contained Gluten," even though they didn't specifically say defendant represented the breads as gluten free.

Third, sufficient evidence where people testified the defendant bought his bagels from costco, relabeled them, and sold them to people with gluten allergies.


Friday, March 8, 2013

NC Supreme Court Decisions, March 8, 2013

State v. Ellison.

Question Presented: Does the opium trafficking statute apply to tablets and pills, basing the punishment on total weight? N.C.G.A. 90-95(h)(4)? Answer, yes (even though it has disparate effect of harshly punishing relatively small quantities of pharmaceutical pill transfers--for example, one bottle of opiate pharmaceuticals gets the punishment of 225 months).

Justice Hudson concurs, but notes concern that persons may be prosecuted whose activities are beyond the intended reach of the legislation.

State v. Khan.

Reversing COA decision. Found that defendant unambiguously agreed to aggravating factors and was properly sentenced in the aggravated range.

COA had found the plea transcript ambiguous on the aggravating factors, as it listed only one of the case numbers at the top, even though both charges were listed in the body. The SC said that this was a silly distinction and the defendant admitted aggravating factors in both cases, as the plea dealt with both cases.

Tuesday, March 5, 2013

NC COA Decisions, March 5, 2013

State v. Braswell. Nash County. Appeal of obtaining property by false pretenses.

Defendant offered to invest his uncle's money and give his uncle a 10% return. Uncle loaned a total of $86,800, which was to be returned as $144,116. Defendant lost all the money day trading.

Held: Insufficient evidence of intent to deceive. This is just a breach of contract. Defendant tried to make money in the stock market and lost it. Not sufficient to show he cheated these people (intentionally) out of their money.

Conviction vacated.

State v. Cook. Prior remand for resentencing. Trial court properly determined defendant was a level VI ofender and sentenced.

Defendant was originally illegally sentenced (sentence below presumptive range without proper findings). No due process problems for him to receive a higher, legal sentence on resentencing.

State v. Hatfield.  Appeal of assault by pointing a gun and assault on a female.

First, it was error for the judge to inform the jury that he couldn't produce a copy of the transcript of a witnesses testimony becasue they were not doing daily transcripts. A judge has discretion to hold the trial while transcripts are produced. It is error for the judge to rule that it cannot be done (the judge must deny this, in his discretion, or produce it in his discretion, not say it's impossible).

New trial ordered.

State v. Mills. Appeal of 1st degree murder conviction.

First, no error in failing to conduct a Batson hearing. The state (at the point of objection) had struck 75% of the eligible African American jurors, but only 20% of the white jurors. Defendant did not argue any other basis for prima facie challenge. "In this case, perhaps most importantly, Defendant and both Crowder and Bizzell were African American."

The Court found that the state questioned black and white jurors the same and the responses of the jurors provided reasonable justification for exclusion.

The answers of the stricken black jurors, found legitimate (even though the State was never required to provide its basis) were:

  1.  A juror had unpleasant encounters with law enforcement and reservations about the DP because of its "misapplication."
  2. A juror said he might lose his license due to a DWI and would have trouble making it to court.
  3. A juror said it would be a hardship because she would miss work and not get paid.
And the history of never granting Batson relief in NC continues...

 State v. Morgan. Appeal of statutory rape and indecent liberties.

First, court remanded for failure to make factual findings on denial of motion to suppress.

Second, indictment that accused defendant of "carnally knowing" was not defective, as gave suficient notice of vaginal intercourse.

State v. Warren. Appeal of embezzlement conviction-- $80,000 over the court of a year.

First, no error in allowing a witness to say the defendant was responsible for removing deposits from a safe, arguing the witness had no personal knowledge of what tasks the defendant performs. Witness could testify, based on her knowledge of the job description, even though she never specifically witnessed such acts.

Second, no fatal varaiance in the allegation of ownership in the indictment and the evidence. The indictment said the embezzlement was from Comfort Inn, belonging to Smoky Park Hospitality, but in 1999, it was actually sold to someone else. Court found this was immaterial, as Smoky Park still managed the hotel and had an interest in the property.

Third, sufficient evidence of embezzlement not clearly presented at trial. At close of evidence, defendant only argued variance.