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COA, in unpublished decision, found the case free of error.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.

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