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.

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