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.









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