Tuesday, February 5, 2013

Court of Appeals Criminal Decisions, Feb. 5, 2013

State v. Banks. Appeal of denial of motion for appropriate relief.

Defendant was convicted in 2007 for statutory rape and second degree rape and sentenced to 240 months plus 73 months.

In Sept. 2011, Defendant filed an MAR alleging ineffective assistance failing to challenge the convictions on double jeopardy-like grounds. This was dismissed by the judge, who found that the defendant was convicted of "separate and distinct crimes."

Held: it was IAC to fail to object to conviction for statutory rape and second degree rape for a single act of sexual intercourse. While this did not violate double jeopardy, the court found the legislature did not intend for individuals to be convicted of both.

State v. Boone. Appeal of probation revocation.

Defendant on probation with 120 days suspended for DWI. Defendant was ordered to do 48 hours of community service and pay $1,385 in costs, fines and fees, plus a probation fee.

A violation report was filed for willful failure to complete community service and being in arrears, six months into the 12 month probation.

Held: State failed to show willful violation. No evidence presented of a payment plan or schedule for community service that defendant did not follow, and there was still 6 months on his original term.

State v. Crawford. Appeal of sentence.

Defendant did not meet burden at trial of showing that federal felonies of impersonating an officer and making false statement to the FBI were substantially similar to misdemeanors under NC Law. The presumption is federal felonies are treated as prior felonies under NC law and the burden lies with the defense to prove otherwise.

Further, NC law's false statement misdemeanor has no requirement of materiality, like the federal statute.

State v. Gray. Appeal of robbery with a dangerous weapon conviction.

Defendant objected to trial counsel's representation because his counsel had previously represented one of the state's witnesses.

Defendant has right to conflict-free counsel. To obtain relief, must show the conflict "adversely affected his counsel's performance." Defendant's prejudice is presumed here where defendant did not waive and the attorney acknowledged possessing confidential information relevant to cross of a state's witness/former client.

New trial.

State v. Johnson. Appeal of denial of motion to suppress.

Defendant on I-95 when stopped for "following too closely" and holding up a cell phone (texting while driving). After the stop, defendant was taken out of the car and frisked for weapons. The officer felt a blunt object in his pants. While in car, the office smelled Marijuana, told the defendant this and was given permission to search. Found a scale. A k-9 came and smelled odor. The officer looked inside defendant's underwear and found two mall packages. Defendant fought his way free and fled, and was caught and charged with trafficking cocaine. He was later sentenced to 22 years.

The smell of marijuana and the scale found on defendant's person gave probable cause and exigent circumstances to conduct the warrantless strip search of the defendant.

State v. Lovette. Appeal of first degree murder, kidnapping, and robbery (this is the juvenile who was sentenced to LWOP in the Chapel Hill murder of Eve Carson).

No fatal defect in robbery indictment. The indictment left blank the person who had been robbed, but indicated the robbery was completed by means of threatening Eve Carson. This was sufficient notice for an effective indictment.

No error in allowing state to ask, on voir dire, if jurors could "consider testimony" of snitches.

Defendant's challenges for cause of 2 jurors not preserved because they were not renewed when he ran out of strikes. No error in denying challenge for cause of third juror who indicated he had problems hearing, but judge found that he could hear well enough to participate.

Found that counsel did not concede guilt in closing.

Held that case should be remanded for new resentencing under Miller. Lovette was under 18 when he received a mandatory LWOP sentence. The U.S. Supreme Court has held that mandatory LWOP for juveniles is cruel and unusual punishment.

Resentencing to be held on whether or not defendant should have the opportunity for parole.

State v. Smith.  Appeal of RDO and indecent exposure.

Defendant was observed masturbating in his car in a Roses parking lot. Police were called and defendant was pulled leaving the lot. Defendant had his shorts down and genitals exposed. During the arrest, defendant didn't comply with orders and, at one point, tried to "turn in a circle" and began "defecating on the ground."

No plain error in instruction, as part of RDO, that the officer was performing the duty of "lawful arrest for indecent exposure."  No error not to instruct on the lawfulness of the arrest, if no evidence supports such an instruction.

Sufficient evidence of RDO, even though defendant says he was only trying to get is pants up.

No error in not granting mistrial, where an officer stated that defendant was a registered sex offender, in response to counsel's question "“when you were on the scene with Mr. Smith, did he ever say he had any kind of medical problems that you heard or explain to you why he was—" Trial court opined that defendant may have opened the door by asking and not filing any in limine motions on the matter. Sustained and moved to strike granted, but no mistrial. The impermissible evidence was cured by proper instruction.

State v. Stokes. Appeal of firearm by felon, kidnapping, AWDWIK, and RWDW.

Defendant robbed a convenience store, firing beside the clerk's head, then told the clerk to get in the car. Clerk walked out of the store, but then refused to get in the car, and the defendant left.

First. sufficient evidence of AWDWIK. Even though defendant shot beside the clerk's head, court found sufficient evidence of intent to kill, since the clerk said, "I thought he was going to kill me right then." "From the evidence, it may be reasonably inferred that defendant intended to kill the clerk when he fired a gun right beside his head." (Apparently, the court of appeals feels that the defendant is just a very bad shot).

Second, insufficient evidence of removal for 2nd degree kidnapping. Moving the victim just a few feet and not into any more dangerous area is not sufficient for removal under the kidnapping statute.

State v. Wilkins. Appeal of possession of firearm by felon.

Held: Indictment was defective, because it was included in a single indictment also charging assault with a deadly weapon. 14-415.1(c) reads "The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section." Because it was not a separate indictment, it is defective.

State v. Wilson. Appeal of motion to suppress identification, under the Identification Reform At, NCGS 15A-284.52.

Challenges the picture ID because defendant's photo was smaller, no effort was taken to make sure it resembled the defendant, or that the other pictures fit the eye-witness descriptions.

A smaller picture doesn't violate due process by being overly suggestive.

The statutory violation doesn't matter, as trial court has discretion in considering violations of the statute.

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