Thursday, June 27, 2013

NC Supreme Court Criminal Decisions, June 27, 2013


Melendez-Diaz, eviscerated in North Carolina.

State v. Ortiz-Zape.  Holding: Witness testifying that a substance was cocaine based on her "independant analysis of testing performed by another analyst in her laboratory" did not violate the 6th Amendment (reversing COA's unpublished decision).

Reviewing all the lab notes and data from the testing instruments of the other person was enough, even though they were based entirely on testing done by someone else.

Two rules seem to emerge from this case:

1) Expert may testified to testing if he/she performed it or had some, even minor, first hand live-witnessing oversight/supervision at the time the testing was conducted.

 2) A qualified expert may provide an independent opinions based on out-of-court statements in certain contexts (not clearly deliniated by anyone), but never simply to repeat the out-of-court statements.

3) An expert can testify about machine-generated raw data without the presence of the person who pushed the buttons on the machine.

Hudson Dissents.


State v. Brent.COA reversed cocaine conviction based on Melendez-Diaz (in an unpublished decision).

Defendant never objected in the presence of the jury, thus this issue was not preserved. Reversed the COA. Even if he hadn't this was not error under Oritiz-Zape. The testifying expert reviewed three graphs produced by a machine from a sample, which she reviewed and independently concluded was cocaine. This did not violate the confrontation clause.

State v. Brewington. Reversing lower court decis

COA  Decision Post: State v. Brewington. Defendant found guilty of possessing cocaine. Challenge to expert testimony based on Melendez-Diaz grounds (that expert testified to opinions of non-testifying expert about the chemistry of the cocaine). SBI Agent identified the substance as cocaine based solely on testing conducted by a non-testifying agent. Under Melendez-Diaz, this violates the 6th Amendment right to confrontation.
The agent who testified clearly had not personally performed or observed any of the chemical tests she relied on in making her opinion. Nonetheless, under Ortiz-Zape, the witness presented an independent opinion based on her review of all the testing and non of the lab notes/etc. of the other experts were entered into evidence.

Hudson Dissents. 



State v. Craven. Affirmes COA on the Melendez-Diaz issue, relying on Ortiz-Zape, but finds it did not affect the conspiracy convictions, and reinstates those convictions.
COA Decision Post: State v. Craven. Defendant pleaded guilty to sale of cocaine and the court entered a prayer for judgment continued until the subsequent term. In the interim, defendant was convicted of new charges of selling and delivering cocaine. Defendant was sentenced to 16-20 months, running the new and the old charges together.

First, defendant makes a Melendez-Diaz argument that the SBI agent improperly testified about analyses conducted by other agents. There is a 4-part test to determine if the document embodying the analyses of another agent can be admitted:

(1) determine whether the document at issue is testimonial;

(2) if the document is testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant;

(3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert’s report or analysis;

and (4) if the testifying expert summarized another non-testifying expert’s report or analysis, determine whether the admission of the document through another testifying expert is reversible error.

The expert basically just put on the analyses done by others and said he agreed with them. This was a confrontation violation. This error was not harmless, even though a lay witness said she had used cocaine for 20 years and this was cocaine. While this is admissible evidence, it does not have the same impact on the jury as a chemical analysis. As such, defendants sentences (in these 3 counts) are vacated.
 State v. Hough. Per curiam affirmance (3-3, so no precedential value).
COA Post Below: State v. Hough. No Melendez-Diaz error in allowing analyst to testify about analysis conducted by non-testifying expert where her opinion was based on her own independent review and confirmation of the results.
 State v. Hurt.   Remanded on same grounds as Ortiz-Zape.

COA Decision Post: State v. David Franklin Hurt. Caldwell County Appeal from 2d murder conviction. Defendant appeals aggravated sentencing based on jury's finding that the murder was especially heinous, atrocious, or cruel.

Held: Defendant has a right, under Blakely, to confront witnesses against him at a sentencing trial under the 6th Amendment. Applies to all sentencing proceedings where a jury makes a determination of facts that, if found, increase the defendant's sentence beyond the statutory maximum. Trial courts admission of hearsay during the aggravation phase constituted error.

Remand for new sentencing hearing.
State v. Williams.Another reversal based on Ortiz-Zape.

Beasley Dissents.

Tuesday, June 18, 2013

NC Court of Appeals Criminal Decisions, June 18, 2013

State v. Coleman. Appeal of DWI. -- Wake County, Rudolph Coleman.

911 caller said there was a gold Toyota parked at the Kangaroo gas station with a beer in it with a specific license plate. Officers responded and pulled over the defendant in a matching car. Defendant was impaired.

Held: No articulable reasonable suspicion for the tip, as possession of a container of alcohol in a parking lot is not a reliable assertion of illegality.  For tip to provide reasonable suspicion, it must reliably identify the defendant AND reliably assert illegality. There's nothing illegal about having an open beer in a car in a parking lot.

The police officer's mistaken belief that it was illegal to have an open container in a car in a parking lot was not objectively reasonable and doesn't allow the stop, under the recent Heien case (adopting rule that objectively reasonable, but mistaken belief of law violation can give rise to reasonable suspicion permitting a stop).

State v. Dial. Appeal of possession of firearm by felon. -- Chatham County, Paul Dial.

Held: Where defendant took an unusually long time (5-10 minutes) to answer the door at his residence when police were there serving an order for arrest, weapons were known to be in the residence, and then came out of his front door with his hands up but not following directions (deputies knocked him to the grown) --> this gave deputies cause to conduct a sweep of the residence to look for an "individual posing a danger to the deputies," thus making the search legal (when they found some guns). The highlight of this case is the deputy testimony that the open door created a "fatal funnel" that would provide this supposed assailant a clear shot at the deputies.

What a bunch of crap. Why would this guy taking a long time and acting like a jerk give reasonable suspicion that some other person is inside and is armed and dangerous?

State v. Garcia. Appeal of 2d murder conviction. -- Mecklenburg County, Victor Garcia.

Defendant challenges admission of law enforcement statements during his interrogations, where the detectives said they didn't believe him, that he was going to look like a monster if he didn't explain the killing, and that the victim was afraid of the Defendant, as plain error.

Held that this was allowed as providing "context" for the interview.

State v. Howard. Appeal of possession of firearm by felon. -- Cabarrus County, Mason Howard.

Defendant, during traffic stop, was arrested on an outstanding warrant. Police brought drug-sniffing dogs and then found drugs and guns.

First, no error in admitting another officer's testimony that defendant, on a previous occassion, fled from that officer and threw a gun in some bushes. Defendant didn't preserve the issue under 404(b), because counsel initially said he was moving under 404(b), but then the Court asked if he was objecting under 403 and counsel said yes. Then appellate counsel only argued under 404(b).

Appeal dismissed.

Thursday, June 13, 2013

NC Supreme Court Decisions, June 13, 2013

State v. Boyd. Per curiam reversal.

Decision Below: Appeal of 1st degree burglary, second degree kidnapping, sexual battery and habitual felon, on remand from the Supreme Court. Found it was plain error for the court to instruct on 2d kidnapping on a theory of removal, because it was unsupported by the evidence. Defendant was indicted on kidnapping on a theory of confining and/or restraining. Judge instructed also on removing. Being forced to sit on the defendant's lap does not constitute removal for kidnapping purposes. This was still plain error, even though court instructed on multiple theories of kidnapping.

State v. Kochuk. Per curiam Reversal.

Decision below: Trooper pulled defendant at 1:00am, after seeing the car cross the dotted white line for 3-4 seconds, 2 times. Defendant was drunk. Trial court found there was not reasonable suspicion for the stop.  Weaving must be coupled with other factors to give reasonable suspicion.  Here, there was nothing more than weaving. No improper turns, signals, or otherwise erratic driving.


State v. Land. Per curiam affirmed.

Decision Below: Appeal of possession with intent to sell marijuana, delivery of marijuana, and habitual felon. Indictment not defective because the delivery did not list a weight, as the amount of marijuana transferred is not an essential evidence.

State v. Rhodes. Appeal of post-conviction relief under 15A-1415(c).

In a drug case, after defendant found guilty, his father came forward and stated the drugs were his. The court granted a new trial based on newly discovery evidence.

HELD: The evidence was available to defendant before his conviction and the statement was not newly discovery under 15A-1415(c).

The father invoked the 5th Amendment at trial. Nonetheless, the information could have been made available by other means. Defendant testified, but didn't say they were his dad's and the defendant didn't cross a detective on the father's possible ownership.

Tuesday, June 4, 2013

NC COA Decisions, June 4, 2013

State v. Burrow. Appeal of trafficking oxycodone conviction.-- Jonathan Burrow, Lincoln County, Judge Beal.
 COA originally ordered a new trial on Sixth Amendment grounds. Post here: State v. Burrow. Appeal of trafficking in Oxycodone. -- Jonathan Burrow.

First, it was plain error to admit the SBI report of an analyst who did not testify into evidence, as violating the confrontation clause. A detective read the report into the record, finding that the substance was Oxycontin. This violated the confrontation clause, as the detective had no independent expert basis for making the statements. This was prejudicial, as no other evidence was presented showing the substance was a controlled substance. Without the report, there would have been a non-suit.  New trial.

Judge Hunter dissents. Said it was harmless, as defendant elicited the same info on cross-examination.
State then added a notice of its intent to introduce the report, not previously provided in the record. NC SC remanded for reconsideration in light of the amended record. Under N.C. Gen. Stat. 90-95(g), State provided notice of its intent to enter the report and the Defendant did not object. Under statute, this waived the Sixth Amendment right. Notice is deemed sufficient, even though there is no proof of service in the file. The filing just notes that a copy was faxed and placed in the attorney's box. Even though this doesn't meet standards of civil procedure, it is sufficient

State v. Davis. Appeal of habitual felon status. -- Antoine Davis, Wake County, Judge Hight.

Defendant appeals decision that his 1994 Connecticut Conviction for 2d burglary could be used to determine habitual felon status. Plea included provision that he could appeal the decision allowing use, but under law, he cannot. Defendant argues to void plea based on his inability to appeal. Denied.

State v. Facyson. Appeal of second degree murder conviction. -- Saquan Facyson, Durham County, Judge Hight.

First, sufficient evidence of second degree murder.  Defendant was present in a car that was involved in a drive-by. Sufficient evidence that Defendant acted alone or with others in the drive by.

Second, trial court erred in sentencing defendant in aggravated range based on jury finding yes to this question: "Do you find from the evidence beyond a reasonable doubt that the defendant joined with more than one other person in committing the offense for which you have unanimously found the [d]efendant guilty and that the defendant was not charged with committing a conspiracy as to this offense?" Under the law, evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation. NC Gen. Stat. 15A-1340.16(d). Defendant was possibly convicted on an acting in concert theory (the jury was instructed on multiple theories). The verdict sheet did not require the jury to state it's theory. As such, it could have found based on acting in concert, making this aggravating factor inappropriate.

Remanded for re-sentencing without that factor.

State v. Gentry. Appeal of conspiracy to sell/deliver oxycodone, possession of oxycodone, selling with 1000 ft of a park, and habitual felon. -- Lucas Gentry, Person County, Judge Ridgeway.

Counsel moved to withdraw and this was denied. Defendant asked to proceed pro se, rather than having his counsel. Defendant argues that new counsel should have been appointed, due to breakdown in communication. While Defendant did state his mistrusted counsel, held that no sufficient showing that there was good cause to remove counsel.

State v. Hernandez. Appeal of drug offenses. -- Rene Hernandez and Dawn Davis, Buncombe County, Judge Gavenus.

No error in denying motion to suppress. First, at trial, Defendant's only challenged the stop, not the unlawful extension of the detention, as such that issue is waived. Second, IAC claim is dismissed without prejudice.


State v. Marley. Appeal of DWI -- Michael Marley, Caldwell County, Judge Morgan.

Sufficient evidence where BAC was above .08, even though he blew .09 and the standard error on the machine was .02. 

State v. Rogers. Appeal of first degree murder conviction and other charges. -- Kevin Rogers, Bladen County, Judge Hill.

First, no problem with short form indictment for murder.

Second, sufficient evidence for first degree murder (for p&d and lack of provocation) where ear-witness said they heard the victim beg for her life and was shot eight times.

Third, sufficient evidence for armed robbery. Even though the stealing occurred after the murder, it was part of a continuous chain of events. Also sufficient evidence of conspiracy where witness said they agreed to commit the robbery before going to the house.

Fourth, not plain error to instruct, for 1st degree burglary, that the underlying offense was burglary, where the indictment said the underlying offense was larceny, since larceny is a lesser included of burglary and the instruction benefited the defendant, requiring the state to prove more, rather than less.

Fifth, no error in failing to submit 2d degree murder. Given evidence of begging and multiple gunshots, this was adequate. Defendant did not put on affirmative evidence of 2nd, rather just challenged this witnesses credibility. As such, 2d murder was not appropriate to submit.


State v. Tucker. Appeal of embezzlement. -- Dennis Tucker, Guilford County, Judge Albright.

Defendant received a $2,000 cash payment when making a delivery in Arizona, bought a plane ticket back to NC with some of the money (his CDL expired), then quit without ever giving it to his boss. 

First, no error in allowing the DA to amend the indictment to read "employee or agent" rather than just "employee" right before trial. These are essentially interchangeable and did not substantially alter the crime charged.

Second, defendant challenges jurisdiction, as the funds were converted while he was in Arizona. Crime occurred when defendant failed to deliver the money in NC, thus there is jurisdiction. This is premised on the "duty to account" doctrine. You can go after embezzlement in the state under which the individual had a duty to account.