Tuesday, April 16, 2013

NC Court of Appeals Criminald Decisions, April 16, 2013

State v. Noble. Transylvania County. Julie Ann Noble appeals involuntary manslaughter conviction.

 Defendant hosted parties for her sons and their friends, providing alcohol to the minors and allowing the minors to bring their own alcohol. The minors would play drinking games/etc. in the presence of the adults. One night, a minor drank himself to death at defendant's house.

First, sufficient evidence for involuntary manslaughter. Elements are: (1) an unintentional killing; (2) proximately caused by either (a) an unlawful act not amounting to a felony and not ordinarily dangerous to human life, or (b) culpable negligence. There may be more than one proximate cause of
death, and criminal responsibility attaches so long as one of the proximate causes is attributable to a criminal act of the defendant.

Here, the unlawful act was providing the bourbon that the minor drank, even though there was no evidence that the defendant directly gave the alcohol to the minor.

Second, no 404(b) error showing that defendant often provided alcohol to minors and in the past had directly offerred alcohol to the decedent. These acts were in close temporal proximity to the charged conduct and sufficiently similar to allow admission. The prior acts were relevant to knowledge and the defendant's plan to make an environment where minors could drink alcohol.

State v. Quick. Cumberland County. State appeals trial court order suppressing statements made by defendant, Ishmael Lamar Quick in breaking and entering case.

At 12:32pm, Defendant requested an attorney. Defendant called and couldn't reach his attorney, but told police he still wanted an attorney. On the way to the jail, the Detective said he was going to be serving more warrants and that an attorney wouldn't help with the warrants. Defendant said, "We need to talk." Was taken back to interrogation and signed a Miranda waiver then made statements.

Under Miranda, once the right to counsel is invoked, all interrogation must cease, unless the suspect initiates further communication. Here, the Detectives statements that he was going to serve more warrants and a lawyer wouldn't help with that was interrogation -- statements made by police likely to elicit incriminating responses. Defendant's statement, "We need to talk" was in response to the state's questions and wasn't defendant initiated communication.

State v. Ragland. Johnston County. Joseph Ragland appeals 2d rape, sex offense, and sexual servitude conviction.

First, error for DNA expert -- Sharon Hinton -- to testify that DNA evidence could not have come from "no one else in the world other than defendant, " citing McDaniel v. Brown, but not plain error due to overwhelming evidence of guilt. McDaniel called this the prosecutor's fallacy--assuming random match probability is the same as the probability that the defendant was not the source.

Second, no object preserving foundation issues relating to chain of custody issues on evidence.

Third, no error for doctor to testify that "Based upon my fundamental knowledge in this area, my experience in treating patients, and my evaluation of this particular patient and her family as well as my review of all of the investigative records and the medical records in this particular case, it is my
medical opinion to the degree of reasonable certainty that the history provided in this case, the behaviors that were described about this child and the DSM-IV diagnoses that she had as well as the laboratory findings and the physical exam findings of this patient were consistent with those types of findings seen in victims in child sexual abuse and sexual assault." Case law says experts can testify that the child's profile is consistent with sexaul abuse, if properly qualified. The fact that the exam by the expert in this case took only an hour does not make her unqualified to so opine.

State v. Rouson. Writ of certiorari on search issue denied.

State v. Steen. Lincoln County. Appeal by George Michael Steen on sex offense charge.

Defendant foster parent raped one of his wards. After being moved to a new foster home, the boy told his new family of being sexually assaulted by defendant in the shower. The boy testified to these acts at trial. A social worker also testified, without objection, the the boy exhibited behaviors "consistent with children who have experienced sexual abuse." She also testified that the boy didn't lie any more than other children and that he showed he knew the difference between the truth and a lie.

First, sufficient evidence.

Second, state called a polygraph examiner to describe his interview with the defendant (a polygraph was not discussed). No plain error in failing to give a limiting instruction when he was introduced as a polygraph examiner for the SBI. No plain error in allowing him to testify that he asked defendant "what he thought should happen to a person who had done something like this to a child" and defendant said, "he should get a second change," especially since defendant testifed to similar statements during his testimony.

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