Wednesday, July 17, 2013

NC COA Criminal Decisions, July 16, 2013

State v. Gamez. Appeal of sex offense. -- Wake County, Osman Gamez.

First, any error from allowing witness to state hearsay was waived by failure to continue to object. Counsel said, during narrative answer "Well, I'm going to object to what she claimed the brother said." Witness then said, "After they left my brother said why is he touching you ? And I said I just don't I just said I don't know. My brother said you should take care of yourself, but we promised we wouldn't tell anybody about it." Court ruled this objection wasn't preserved because there was no motion to strike, because admissibility wasn't "indicated by the question." WOW. 

Second, no error in allowing expert to testify that the victim had PTSD. First, held that the effective date of the amendments to Rule 702 (adopting Daubert) apply to the date of indictment, not the date of trial. Rules that testimony passes the Frye test.


State v. Gordon. Appeal of common law robbery and assault on a female. -- Iredell County, Carlos Gordon.

Man grabbed a 65 year old lady's purse in the parking lot of a Walmart. She pushed him and he punched her the in face, then stole the purse. Police had no suspect. Found a similar assault occurred at a Walmart six weeks before. Police showed the picture of that guy to the witnesses in a photo array and one picked him out. Jury convicted based on the ID and the prior (where defendant was caught red-handed).

Defendant argues if was error under 404(b) to admit the prior. Here, the similarities were: Walmart parking lot and theft of purse from lone female, within 6 weeks of each other, and black male. Differences were: no assault in first and the first assault happened 20 miles away in a different town.

Court found this sufficient. In case you haven't notice, Rule 404(b) is a JOKE in North Carolina.

State v. Kornegay. Appeal of judgment revoking probation and activating sentence. -- Pitt County, Ibn Kornegay.

Held: It was error to revoke defendant based on new pending charges, where the notice did not include the defendant had committed a criminal offense. Rather the notice simply said the defendant had "been in possession of a firearm" etc. Court was without subject matter jurisdiction to revoke, due to the problems with the notice.

State v. Lee. State appeal of grant of MAR and entry of amended judgment. -- Stanly County, Bobby Curtis.

Defendant's MAR seek application of the Justice Reinvestment Act provisions retroactively to his sentence, reducing his sentence from 90 to 71 months. His plea was for the "bottom of the mitigated range", which was lower under the new guidelines.

The Act states that it only applies to offenses committed after 12/1/2009, thus it was error to apply it retroactively.

State v. Peterson. State appeal from order granting MAR and vacating conviction in first degree murder case. -- Durham County, Michael Peterson.

Trial court granted a new trial based on evidence concerning SBI Agent Deaver's qualifications. Deaver played a determinative role in the outcome of the case, testifying that, due to blood splatter evidence, it could be determined that defendant killed his wife, rather than her dying in a fall. At the MAR hearing, defendant proved that Deaver had misled the jury and testified falsely about his qualification, his bias, and the reliability of his methods.

Held: This was sufficient new evidence that could have made a difference at trial.


State v. Romero. Appeal of order modifying probation and imposing a Confinement in Response to Violation (CRV) under the Justice Reinvestment Act (JRA). -- Johnston County, Lee Romero.

Held: Defendant has no statutory right to appeal an order modifying probation and imposing a CRV.

State v. Stevens. Appeal of assault on a child under twelve and contributing to the delinquency of a minor. -- Wake County, Wesley Stevens.

First, indictment for contributing was not defective.  The indictment says that, on a particular date, Defendant caused a particular juvenile to be in a place or condition where they could be adjudicated delinquent. Defendant argues that this is defective, as it just recites the elements of the crime and doesn't include any specific facts -- like what the defendant did or what the child could have been found delinquent for. Court disagrees.

Second, sufficient evidence of contributing.

(1) the State must show, beyond a reasonable doubt, that Defendant knowingly or willfully caused, encouraged, or aided the juvenile to be in a place or condition whereby the juvenile could be adjudicated neglected. (2) adjudication of neglect requires the State to show, by clear and convincing evidence, that a juvenile is neglected.

Defendant roped his bicycle to the 8 year old juveniles bicycle seat, rode real fast, and then swung his belt at a window and the buckle came off and hit the kid in the eye. They then rode to a store where defendant was drinking. Defendant then rode away and left the kid asleep in a parking lot of a store injured. This was sufficient evidence.

Third, error to allow jury to convict of assault on a child under 12 on a criminal negligence theory. The indictment said "unlawfully and wilfully did assault." Negligence as a theory was not alleged in the indictment. This count should have been dismissed.

Tuesday, July 2, 2013

NC Court of Appeals Decisions, July 2, 2013

State v. Hanif. Appeal of sell/deliver counterfeit controlled substance. Forsyth County. -- Kingg Hanif

 Defendant sold a detective fake vicodin for $4. At arrest, defendant had baggies of Epsom salt. Defendant moved to suppress as irrelevant and allowing statements defendant made to the magistrate and arresting officer that were threatening and made him look bad.

First, held trial court committed plain error allowing officer to testify that the fake vicodin was "tramadol hydrochloride" based solely on visual inspection. Without this, state could not meet it's burden to show that the substance was counterfeit.

Second, no error in admitting the Epsom salt on retrial, as goes to intent and is another fake drug in his possession (fake crack).

Third, no error in admitting the threatening/angry statements, as they are part of the story of the arrest.

State v. Horskins. First degree murder, Pasquotank County -- Shawn Horskins.

Shooting in the street during an argument. Defendant testified that he only shot when the other guy grabbed his gun. Jury convicted.

First, sufficient evidence of first degree murder where some evidence showed defendant kept firing after victim hit the ground and defendant took affirmative acts to hide evidence afterwards.

Second, no prejudicial error in not allowing defendant to testify that he had been told that Mr. Williams (the victim) was in a gang and carried a gun. While this may be relevant to the reasonableness of the defendant's apprehension and use of force, there was no evidence that the defendant knew the victim was Mr. Williams, as he had never met him.


State v. Lowery. Appeal of assault by strangulation. Forsyth County -- William Lowery.

Sufficient evidence.  Assault by strangulation with injury is a class H felony and to prove it the state must show:

  • Strangulation: pressure to the throat sufficient to create difficulty breathing
  • Physical Injury: cuts and bruised on the neck are sufficient
  • Causation: that the injury was caused by strangulation.
Testimony of the victim and the pictures sufficient to prove this, even though defendant also committed other acts of assault that arguably could have caused the injuries.

No proof required that greater injury occurred than would normally accompany strangulation or that the victim was strangled to the point that there was a risk of death.

State v. Nolen. Appeal of revocation of probation, Gaston County -- Corey Nolen.

Defendant violated and revoked for "making her whereabouts unknown to probation, therefore absconding" and failure to pay money.

First, under the Justice Reinvestment Act (JRA) of 2011, probation can only be revoked upon new convictions, absconding, or a 3rd violation of other conditions that were previously punished with brief confinement. The act also added a condition to all probation that absconding including "willfully making whereabouts unknown to the probation officer."

Defendant argues that, while JRA revocation requirements apply to her (they clearly do), the new provision of probation does not as it was never ordered by a court and would be ex post facto to just be added to her sentence (her sentence was from 2010, before the JRA).

Court agrees and remands. Only violated monetary conditions, not the absconding condition.

State v. Pemberton. Appeal of first degree murder conviction, Wake County -- Devonte Pemberton.

First, defendant's IAC claims that counsel admitted all the elements of felony murder under a misapprehension of law are dismissed without prejudice to be filed in an MAR (counsel admitted that defendant was a present participant in a robbery, just denied he was the shooter).

Second, because Pemberton was under 18 and was convicted solely on felony murder grounds, he should be resentenced to life with parole under NC Gen Stat. 15A-1340.19B(a).

State v. Poole. State appeal of dismissal violation of Domestic Violence Protective Order (DVPO), Buncombe County -- Tracy Poole.

Defendant served with DVPO, requiring him to get rid of all firearms. The next day, Sheriff went to his house and found a shotgun. Trial court dismissed, ruling the DVPO was not valid for criminal purposes, as it was entered ex parte.

HELD: Ex parte order entered under 50B is a valid protective order for DVPO purposes. The Supreme Court ruled ex parte orders weren't valid protective orders, and then, in 2009, the legislature amended the statute. Rules that ex parte are valid under the new statute.

State v. Sheppard. Appeal of larceny from a person, felony larceny, and habitual felony, Forsyth County -- Alonzo Sheppard, Jr.

Defendant stole victim's purse out of her shopping cart while she was at the store, while she was grabbing groceries.

First, sufficient evidence of larceny from the person. The purse was under the victim's control, even though she was arms length away getting pickles when he grabbed the purse. Distinguishes from a case where the victim was 4-5 steps away from a grocery cart when the purse was grabbed.

Second, error to sentence for both larceny from a person and felony larceny for the same theft. Further, vacates the felony larceny as the indictment said it was a felony because $1,000 in currency was taken, which it was not.

State v. Storm. Appeal of murder conviction, Buncombe County -- Tyler Storm.

Defendant, 18, called police and told them, after drinking two 4-Loko Beers (12% alcohol), he chopped his sleeping brother up with a sword.

No plain error include the submitted submit diminished capacity and voluntary intoxication instruction in the final mandate (they were given earlier).

No error in allow lay witness to testify that the defendant was "noticeably depressed with flat affect" when he was 12 years old. This lay opinion was rationally based on the witnesses observations and helpful to the trier of fact, as mental capacity was in issue. Further, any error would be harmless.

No error in failing to intervene ex mero motu to prosecutor's closing argument: "Depression might make you suicidal. Depression doesn't make you homicidal."