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.

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