Tuesday, April 2, 2013

NC Court of Appeals Criminal Decisions, April 2, 2013

State v. Arrington. Appeal of lifetime satellite-based monitoring order. -- Tyron Arrington

Defendant appeals, arguing that the finding that he was a "recidivist" and had committed a reportable offense was unsupported by the evidence.

First, abduction of children (N.C.G.A 14-41) is an offense against a minor and is a reportable offense if the offender is not the minor's parent. Although the state didn't present independent evidence that the defendant was not the parent of the child, this was in findings in the sentencing court.

Further, his sentencing worksheet included indecent liberties convictions and was stipulated to. This is enough for recidivism.

No error.

State v. Barnes. -- Michael Barnes.

First, no error to allow toxicologist to testify, despite not giving notice to the defense of the witness. Was not an abuse of discretion.

Second, no error to instruct on involuntary manslaughter, where defendant was accused of selling drugs to victim, which led to death.

State v. Hadden. Appeal of satellite-based monitoring order. Held: trial court failed to make adequate findings. -- Joey Hadden.

State v. Hazel. Appeal of possession, sale, and trafficking of heroin. -- James Hazel.

Buy/bust operation where defendant sold 3.97 g heroin to a cop for $800.00. After arrest, gave officers a key to an apartment/consented to search and found additional 1 g of heroin.

Defendant argues that drugs were in two different places and were two different offenses and shouldn't be combined together to meet the minimum weight of trafficking.

Held: drugs found in separate locations can be added together.

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. -- Nicholas Heien.

First, defendant challenges the search on ground of undue prolongment of detention during traffic stop. Driver was stopped for a brakelight 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).

McGee Dissents.

State v. Hunnicutt. Appeal of probation revocation. -- Joshua Hunnicutt.

First, in appeal of probation revocation cannot challenge the indictment.

Second, judge validly found violation of condition of probation by finding defendant "absconded," where condition was to "report as directed to the probation officer."

Third, no abuse of discretion in activating sentence.

State v. Phifer. Appeal of guilty plea of possession of firearm by felon/habitual felon. Only the suppression motion is appealed. -- Fawn Phifer.

Held: Motion to suppress should have been granted.

At 2:00pm, a police officer saw two people walking down the street of a high crime area. Officer approached and asked the two men to stand in front of his car. The defendant did not and asked the reason for the stop. The officer told him that city ordinance disallowed walking in the street. Defendant acted "nervous." The officer checked their warrants (they had none) and told them he was going to give them a warning. The officer then said he was going to frisk them for weapons and defendant admitted having a gun.

Defendant's "nervous" behavior alone was insufficient, under Terry, to give rise to reasonable suspicion that he was armed, thus the officer lacked a legal right to frisk the defendant.

State v. Ramseur.Appeal of double murder in Iredell County with life sentence. -- Travis Ramseur.

During a beef between two feuding groups of armed men, a call went out to Defendant saying, "he might want to come over." A fight broke out, weapons were brandished, and everyone left. Defendant and two others were positioned outside of the place. When the three men got near defendant, they were shot and returned fire. Two men were killed.

First, the State failed to disclose more than 1,800 pages of discovery, to which defendant was entitled. While this was a violation, the jury verdict would not likely have been different- finding the pertinent information was disclosed in other forms or would not have been helpful to the defendant at trial.

Second, no error/plain error in failing to instruct on self-defense, defense of others, or voluntary manslaughter based on imperfect self defense. Court finds no evidence that would support defendant reasonably believe he or his friends were in imminent danger.

State v. Renkosiak. Appeal of embezzlement conviction. -- Helen Renkosiak.

Facts were that defendant kept using a work credit card for personal expenses after being told not to use it and some other payments as well, totaling $116K. When confronted, the defendant said she "meant to pay it back" and offered $15K.

No error in allowing state to show she used the card after she was no longer authorized to do so.

State v. Richardson. Appeal of AWDWIKISI and possession of firearm by felon. -- Roderick Richardson.

HELD: New trial due to improper prosecutor statements during closing argument.

On cross, the State asked the defendant if he told detectives what happened. An objection was sustained. On closing, when arguing credibility of witness, the DA said,"[Defense Counsel] asked him, had he ever had a chance to tell his story, and he said no. Well, when I started asking him questions, what did he say? He had some chances and he didn’t." Rule that this was a plain error, comment on defendant's post-arrest silence.

State v. Sessoms. Appeal of AWDWISI conviction.-- Bobby Lee Sessoms.

Mr. Griffin comes home to find defendant in his driveway in a van. Tells him to move. Defendant hits victim with machete. Defendant argues self defense.

First, no plain error for trial court to continually call Griffin "the victim" in a self-defense case.

Second, no plain error for police officer to say that a specific witness's testimony "would be most valuable here today." This is not improper vouching, but if it were, it is not plain error due to overwhelming evidence.

Third, no plain error in failing to instruct on defense of others. Defendant testified that, "I took the machete and done like that to defend myself and my vehicle and my wife." The only evidence of self-defense was this statement. No plain error to fail to instruct.

Fourth, not improper 404(b) evidence, but rather just testimony of witnessed fact, when brother testified, after witnessing the incident, that he called the police because "I didn’t want anybody
else to get hurt by a man with a machete riding around."

State v. Ward. Appeal of conviction for trafficking oxycodone. -- Billy Ward.

Defendant challenges the testimony of experts who testified to the results of chemical analysis performed by other experts, under the 6th Amendment. No objection was made at trial. No objection, no error for this kind of problem.

State v. Williams. Appeal of violating a domestic violence protective order and stalking. -- David Williams.

HELD: Court committed plain error in its instructions on charge of stalking and should have granted the motion to dismiss based on insufficient evidence.

First, Court instructed under new, amended statute, whereas most of the conduct was under a prior statute. Plain error. Without a special verdict, cannot determine if jury found that defendant committed any of the acts after the new statute, or convicted on acts prior to the new statute.

Second, as to the domestic violence protective order violation, the state had to prove the defendant "knowingly violated" the restraining order.  The order said to stay away from the victim's workplace. It did not name that place. Defendant was in the parking lot, near where the victim worked. No evidence that defendant knew where she worked.

Question for court-- is being in the parking lot violating an order to "stay away" from the workplace.

There was insufficient evidence as to whether defendant failed to stay away and no evidence that he knowingly did so. Motion to dismiss at close of evidence should have been granted.

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