Tuesday, May 21, 2013

NC Court of Appeals Criminal Decisions, May 21, 2013

State v. Bean. Appeal of first degree murder conviction. -- Tamara Bean, Randolph County.

COA, in unpublished decision, found the case free of error. NCSC remanded for reconsideration in light of State v. Lawrence and State v. Campbell.

First, defendant argues the State used the Defendant's constitutional right to silence against her as impeachment and as substantive evidence of guilt. State put on witnesses at the hospital that say Defendant never mentioned anything about self-defense. Found that even if this was error, it was harmless because the Defendant told nurses at the hospital: "I killed my husband just because I finally had enough of him" and "I'm guilty."

Second, defendant argues State improperly commented on her right to plead guilty in closing. In closing, the State said, despite mounting evidence , the Defendant could "still say I didn't do it." This was not improper.

State v. Bell. Appeal of robbery with a dangerous weapon (RWDW) -- Mario Bell, Rutherford County.

Defendant testified that he robbed an office with an unloaded gun, taking money from the cash drawer.

First, sufficient evidence of robbery with a dangerous weapon. Defendant's testimony that the gun was unloaded was some evidence that it was unloaded, but  a jury could have disbelieved this testimony and believed the gun was loaded. Under the law, a gun is presumed loaded/functioning, unless Defendant can prove otherwise.

Second, no error in failing to instruct the jury on "mere possession" of a firearm for robbery, as here the evidence shows the defendant wielded the weapon and threatened to use it.

Third, emotional victim testimony, even if error, was harmless due to overwhelming evidence of guilt.

State v. Cathcart. State appeal of suppression of Intoximeter (in DWI)-- John Cathcart, Forsyth County.

 Superior Court suppressed intoximeter results. The procedure for these is to do 2 tests and that they are valid if they are within .02 of each other. Defendant blew twice, getting a .10 and then an "insufficient." Cop had him blow again, in which he got a .09. Defendant successfully argued that the 2 blows had to be in a row, on the same "test record ticket", not one on each ticket.

Under 20-139.1(b3), the results are admissible only if "two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than .02.  Held: The two samples were "consecutive," even though there was an "insufficient" in between the two and they were on two different tickets.
 
State v. Coleman. Appeal of trafficking in heroin. -- Anthony Coleman, Mecklenburg County.

Held:  Plain error to fail to instruct jury on the law of guilty knowledge, in accordance with the pattern jury instruction, as defendant contended he did not know the true identity of what he possessed.


State v. Gardner. Appeal of motion for post-conviction DNA testing in old rape case. -- Edward Gardner, IV., Pitt County.

First, standard of review for denial of DNA testing is to review law de novo and facts on abuse of discretion standard.

Second, to be appointed counsel, a pro se defendant must prove that the DNA is material to Defendant's case. Defendant's conclusory statements (that the DNA would prove he didn't do it) were insufficient.


State v. Hill. Appeal of felony possession of dangerous weapon by prisoner, communicating threats, carrying a concealed weapon, injury to property and habitual felon. -- James Hill, Jr., Catawba County.

Defendant threatened some guards with a razor blade (from a pencil sharpener) and part of a nail clipper. He had also cut up his mattress. He was sentenced to 10 years.

First, no non-unanimous verdict instruction problem where Defendant supposedly threatened 3 guards, but only charged with specific threat to one of the guard. Defendant argues jurors could have differently found threats to different guards, risking a non-unanimous verdict. Defendant did not request such instruction, nor raise the non-unanimity issue at trial. No plain error.

Second, sufficient evidence of communicating threats. Defendant argues that the Deputy  didn't subjectively believe that he was going to "kick her ass." Court finds this without merit.

Third, sufficient evidence of carrying a concealed weapon. The razor blade that Defendant left in an adjoining room was "about his person" because, at one point that day, he was sitting in the day room.


State v. Ingram. Appeal of first degree murder. -- Windsor Ingram, Wayne County.

First, sufficient evidence that Defendant was the perpetrator, where witness identified Defendant from a lineup that was a little shaky. This goes to credibility, not sufficiency of the evidence.

Second, no error on failing to instruct on second degree murder. Defendant did not request and the evidence here of multiple shots to the back and left him to die, suggesting time to premeditate and deliberate.

State v. King. Appeal of first degree murder. -- Michael King, Mecklenburg County.

First, no constitutional violation in denying defendant's right to appeal. Defendant sought a continuance to hire a DNA expert. Although defendant had the discovery on June 9, 2011, counsel did not review it until March 5, 2012, a month before trial. Defendant argued he would be denied effective assistance of counsel if no continuance was granted. Held it was not abuse of discretion to deny the continuance, based on lack of diligence of counsel. Can raise the IAC again on post-conviction.

Second, no error in refusing to instruct on credibility of drug abusers. Law on this is: " Where an instruction concerning the credibility of a witness is requested, “the trial court must give the instructions requested, at least in substance, if they are proper and supported by the evidence.” Defendant proposed instructions concerning the impairment of witnesses. Held that these instructions were implicit in instructions already given on the credibility of witnesses.


State v. Leach. Challenge of denial of write of habeas corpus. -- Reginald Leach, Cabarrus County.

Defendant challenged denial of parole.  Defendant failed to provide adequate factual information that he was entitled to release under the parole contract.


State v. Phillips. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), kidnapping, and violent habitual felony. -- Anacin Phillips, Craven County.

Defendant's girlfriend testified that he beat her, held her down and cut off her clothes with a knife.

First, the court referring to her as "the victim" in instructions did not violate N.C. Gen. State. 15A-1232 that forbids judges from expressing an opinion as to an issue of fact. "Considering the fact that our courts have on many occasions stated that the use of the term “victim” in jury instructions is not an expression of opinion, and considering the horrifying facts of the assault in the instant case, we can discern no prejudicial error as a result of the trial court’s use of the word “victim” to identify the State’s prosecuting witness during its jury instructions."

Second, Court erred in counting an Ohio prior conviction for "intentional shooting, cutting, or stabbing" the same as the North Carolina crime of AWDWIKISI. These are not substantially similar. Should have been sentenced as a level IV.


State v. Primus. Appeal of conviction for attempted felony larceny and injury to personal property.-- Micheal Primus, Scotland County.

Defendant stole an A/C unit off a trailer. Got caught by a neighbor, and left it at the scene.

First, defendant argues insufficient evidence of attempted larceny, as this was actually a completely larceny. However, where there is sufficient evidence for the greater offense, the defendant is also guilty, as a matter of law, of all lesser included offenses.

Second, defendant challenges judges instruction that "wires and piping connected to an air conditioning unit are personal property," arguing that that was a factual issue for the jury. This was harmless.

Tuesday, May 7, 2013

NC Court of Appeals Criminal Decisions, May 7, 2013

State v. Caudill. Joseph Caudill appeals first degree murder case.

First, defendant challenges admission of his confession under 15A-501(2) which requires a person to be taken before a judicial official "without unreasonable delay" after arrest. Defendant was arrested at 9:00am, transported, then sat in a holding cell for a few hours. He was interviewed at 1:59pm. He was taken before a magistrate at 2:53pm. This delay between his arrival at the jail and being taken before a magistrate was not an "unreasonable delay."

State v. Gerald. Johnny Gerald appeals his conviction for kidnapping.

The defendant received ineffective assistance (IAC) when his counsel failed to timely move to suppress evidence seized during a warrantless search. The search and seizure was patently unconstitutional--a deputy entered, without a warrant, the defendant's home and collected evidence along with the victim.

State v. Greenlee. Brad Greenlee appeals convictions of obtaining property by false pretense and habitual felon.

Defendant pawned numerous items matching descriptions (and some matching serial numbers) of items reports stolen from cars.  Defendant told police, on arrest, that he was a crack dealer and traded crack for the items. Defendant further said that "he didn’t care whether [the items people would bring to him] were stolen or not, but he would take it if he thought he could make a profit off of it."

First, sufficient evidence of OPFP.  Defendant challenges that two of the items were not proven to be stolen. 1)a TomTom, had a a different model type on the sales inventory (from the pawn shop), but the same serial number. This was sufficient as to that item. 2) a Tascam 8-track had a different serial number as reported and on the pawn receipt. This was a rare item, however, and was thus sufficient evidence on that item.

Second, insufficient evidence of conspiracy on items sold by another person.  There was no evidence presented that defendant was present or near enough to render assistance when his friend pawned those two items. Reverses on those 2 convictions.


State v. Heavner. Brent Heavner appeals convictions for assault on a government official and malicious conduct by a prisoner (spitting at cops) (he got sentenced to 6 years).

Defendant, drunk, during arrest for threatening his grandmother, was assaultive with the deputies, spit at them, and was generally uncooperative.

After conviction, it was learned that the mother of the Defendant spoke extensively with a juror, during the trial, about defendant's mental health and substance abuse problems. The juror stated that he didn't take any of this into account in rendering the verdict, so the Judge didn't set it aside.

First, no error in multiple counts of "malicious conduct," finding the legislature did intend each act of spitting to be a count (rather than just one for the whole transaction." (defendant argued, analogous to assault cases of multiple gunshots being a single, rather than multiple assaults)

Malicious conduct by a prisoner, N.C. Gen. Stat. 14-258.4, reads: "Any person in the custody of . . . any law enforcement officer, . . . who knowingly and willfully throws, emits, or causes to be used as a projectile, bodily fluids or excrement at a person who is an employee of the State or a local government while the employee is in the performance of the employee’s duties is guilty of a Class F
felony. . . ." [Yes, as of 2011, spitting at guards is a class F felony, the same class as Assault Inflicting Serious Boidly Injury, Assault with a Deadly Weapon on a LEO, Involuntary Manslaughter...]

Second, no error in failing to set aside verdict after learning of the juror misconduct.  Court held that the fact the juror said it didn't affect his verdict could not be considered (and shouldn't even have been elicited) in determining the issue. Nonetheless, found that any of this information was harmless to be heard by the juror, as nothing clearly indicated the juror knew the woman was the mother of the defendant, as she didn't use his name or give details of the case.

State v. Macon. Madisa Macon appeals DWI.

At retrial, after a hung jury, judge instructed that the jury could consider defendant's refusal to take a breathylzer as evidence of guilt, even though a different judge ruled differently at the first trial.

Held: Didn't violate collateral estoppel or the rule that one Superior Court Judge cannot overrule another in this circumstance.

First, upon ruling of a mistrial, all the findings/orders in the first trial are legally non-existent. Thus, the rule against overruling other judges does not apply.

Second, collateral estoppel only applies to the issues of ultimate fact determined by a final judgment. Here, there was no final judgment and collateral estoppel does not apply.

Finally, court found there was sufficient evidence of refusal to give the instruction.

State v. Norman. Kenneth Norman appeals 2d rape and sex offense convictions.

Held: sufficient evidence of rape where victim, drunk, testified that she told defendant no, had avoided his sexual advances all night, and she was raped. Victim's mother arrived to find the victim hysterical and her clothes in disarray.

No error in failing to submit attempted rape where clear and positive evidence of intercourse.

State v. Thomas. Jeffry Thomas appeals trafficking conviction.

Held: No plain error not to instruct on defense of entrapment. To prove entrapment, must show that police acts of persuasion, trickery, or fraud induced the defendant to commit a crime that he was not predisposed to commit. Defendant, who was addicted to pain pills and had bought them from this same friend before, got a call from a friend offering him 14 pills for $80, which he bought. He then tried to get his money back, as the pills were different than the usual pain pills he bought. His friend wouldn't take the money back. This was not sufficient evidence to warrant an entrapment instruction.

This is sadly "trafficking" in North Carolina--14 pills for personal use. Defendant sentenced to 6 years.


State v. Threadgill. Michael Threadgill appeals sentencing record level.

First, no error in designating South Carolina conviction for "Financial Transaction Card Theft" as a felony. State has the burden, by the preponderance of evidence, to show the out-of-state crime is a felony. Here, the DCI printout listed it as a Class I Felony. That was sufficient evidence.

Second, 15A-1340.11(7) is constitutional. This statute defines a prior conviction as: "A person has a prior  conviction when,  on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime[.]"

Here, defendant was sentenced for another crime, after the date of offense of this crime, creating a situation where the "Defendant [was] facing a greater sentence at the time of sentencing than he faced on the date of the offense." Defendant challenges this as an ex post facto violation. Held that this was not an ex post facto problem.

State v. Tindall. Holly Tindall appeals probation revocation.

Held: Trial court lacked jurisdiction for the probation violation because the violation found was not alleged in the violation report. She was revoked for having new charges, the violation only mentioned drug use. Oops.

State v. Torres-Gonzalez. Jose Torres-Gonzalez appeals conspiracy trafficking cocaine charges.

First, search warrant for defendant's home was valid. It did not simply have conclusory statements, but laid out facts that would support a belief that contraband was in the residence.

Second, sufficient evidence of conspiracy to traffic in a controlled by where Defendant road with the guy who set up the deal with the cops, made calls to the cops to tell them where to come, and picked up the drugs for the sale.

Third, not improperly inconsistent jury verdicts where jury acquitted of trafficking cocaine, but convicted of conspiracy to traffic cocaine. "A verdict is legally inconsistent or mutually exclusive “when [it] purports to establish that the defendant is guilty of two separate and distinct criminal offenses, the nature of which is such that guilt of one necessarily excludes guilt of the other." A mere flaw in the jury's logic is not enough. While the verdict is inconsistent, it is not legally contradictory.

No error.

State v. Vaughn. Keisha Vaughn appeals AWDWIKISI case.

Fight after club between guy and girl over girl leaving with another guy. Victim and defendant had a fight. She got a knife out of her car and went back to defendant. Defendant "charged her like a bull" and she stabbed him.

The judge instructed the jury that Defendant was not entitled to the benefit of self-defense if she was the aggressor in her altercation.

Held: Plain error where judge instructed on first aggressor, where all the evidence showed the victim "lunged at the defendant" before she was able to initiate any action.

State v. Webb. Ledonta Webb appeals probation revocation.

Defendant challenges revocation, as the lawyer that represented him was not officially appointed and the court failed to follow the IDS rules on appointment. Defendant failed to raise constitutional objections in his initial brief, as such, he must show prejudice (because this is just a statutory claim). Any error, if there was any, was not prejudicial.

State v. Williams. State appeals finding of extraordinary mitigating in case of Eric Williams.

Defendant pleaded guilty to sex offense. The Court, on its own motion the day after sentencing, filed and granted it's own MAR, and found extraordinary mitigation and entered a  suspended sentence (vacating the active sentence imposed the day before). The State appeals. Defendant (20) charged with statutory sex offense after trading cigars to a 14 year old for oral sex, not knowing her age.

First,  trial court gave sufficient notice of it's sua sponte MAR by stating the grounds in open court within 10 days of the sentence.

Second, court's findings of extraordinary mitigation were improper. Two of the findings, the defendant's mental state and passive role, are regular mitigating factors. Two of the findings were not appropriate: (1) the vicitm's consent is not approoriate given the nature of the offense; and (2) the defendant's involvement being limited to the "physical reaction to her ministrations" is not accurate, as the defendant also (in addition to receiving oral sex) asked the victim to lift up her shirt and show her breasts.

Remanded for resentencing.