Tuesday, August 20, 2013

NC COA Decisions, August 20, 2013

State v. Agustin.  Appeal of rape, Burke County - Arnulfo Agustin.

No error, in rape of child case, in not instructing on lesser of rape, where no dispute the child was under 18.

State v. Bowden.  Appeal of murder, Cumberland County - Bobby Bowden.

Bowden entitled to parole in 1975 murder conviction based on good time/etc. where DOC applied the good time to his sentence and gave him a release date.

State v. Green.  Appeal of burglary, sex offense and robbery, New Hanover County -- Darius Green

Sufficient evidence of sex offense where defendant, at gunpoint, forced victim to penetrate her own vagina with her own fingers.

No 404(b) error in putting on evidence that defendant robbed a Holiday Inn 2 days after the crime, as similar clothing was worn (black mask) in both cases, both involved gun, and both involved moving the victims around asking for money.

1st degree sex-offense not an "aggravated offense" for lifetime satellite-based monitoring.

State v. Knudsen. State appeal of alcohol case, Forsyth County. -- Eric Knudsen.

Upheld trial court suppression. Defendant was seized on the sidewalk when two uniformed officers, with weapons, approached and blocked his path with a bicycle. No reasonable suspicion for the stop when defendant had a cup with clear liquid in it.

State v. Marino. Appeal, Moore County.  -- Jory Marino.

Held: No error in refusing to allow defendant to review source code of intoxilyzer. Not Brady evidence as no showing it was material or favorable. Further, no statutory right to discovery (beyond Brady) in DWI cases. No error in denying MAR without a hearing.

State v. Murray.  Appeal of PWISD Cocaine, Cleveand County -- Donnell Murray.

Court erred in allowing evidence of a photo supposedly of Defendant's sons, where no one could testify that they were his sons (they were picked out of a lineup as selling drugs from defendant's home).

State v. Packingham. Appeal of accessing social network by sex offender, Durham County --  Lester Packingham.

Found that law forbidding sex offenders from using social networks violated the 1st amendment and was an over broad limit on freedom of speech.

State v. Perry. Appeal of 1d murder case, Wake County -- Johnathan Perry.

Child death case/shaken baby case.

No error in allowing state medical examiner to testify to opinion that injury was "intentionally caused," allowing state expert to testify to all elements of the offense. Sufficient evidence of murder where defendant was last in presence of baby, alone, and had subdural hematomas.

LWOP does not violate 8th amendment.

State v. Presson. Appeal of homicide case, Dare County -- James Presson.

Sufficient evidence where, while there was significant evidence of self-defense, there was some evidence the defendant was the aggressor and used excessive force.

State v. Tatum-Wade. Appeal of evading income tax, Wake County -- Gloria Tatum-Wade

Court erred in keeping out character evidence of defendant's trusting nature (relevant to defense of no intent to defraud due to reliance on advice), but found it harmless.

State v. Walston. Appeal of sex offenses, Dare County -- Robert Walston.

Error for judge to refer to children as "victims" rather than alleged victims, as there was dispute as to whether any sex offense had occurred (20 years previously).

Error for judge to keep out evidence of Defendant's good character for being respectful around children. Error to deny defense request to make a proffer of this evidence.

Actions arise (for statutes that say "all actions arising on or after...") on the date of the superseding indictment, not the date of the original indictment.

Wednesday, August 7, 2013

NC Court of Appeals Criminal Decisions, Aug. 6, 2013

State v. Bacon. Appeal of involuntary manslaughter conviction. -- Buncombe County, Evan Bacon, Jr.

Appeal on sentencing issue. No error in failing to find two mitigating factors, but court did err in finding aggravating factor.

Court found aggravating factor of "[t]he defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person."

Court found that this is the same evidence necessary to show recklessness for voluntary manslaughter purpose in this vehicular homicide.

No error in rejecting mitigating circumstance, of "positive employment history," where only evidence was that defendant had worked at GE for 29 years.

Remanded for resentencing.

State v. Barrett. Appeal of indecent liberties conviction. -- Union County, Jeffery Barrett.

39 year old groping a 15 year old.

First, no error in allowing prior statements of victim in as corroborative, as the additions/differences from the trial testimony were minor.

Second, no error in allowing testimony of witness about prior arrests of the defendant.  Witness only said got defendant's birth date out of "the system" based on "prior arrests."

State v. Blackwell. Appeal of possession of cocaine and selling cocaine. -- Person County, Dennis Blackwell.

Defendant sold $20 and $40 worth of cocaine to an undercover officer. He was found guilty of these charges and being a habitual offender and was sentenced to 9-11 years.

Jury sent out a note after 70 minutes of deliberations saying, "“What can we do if we have a verdict of 11 saying guilty but 1 that says not guilty and will not change their mind? And does not want to convince the other 11 to vote otherwise . . . .”

The judge gave the jury the modified Allen charge and also told them that, if they hadn't reached a verdict by the end of the day, they'd come back to deliberate more. Jury came back guilty at 5:03pm.

Defendant argues the judge coerced the jury with this instruction. Held: No error.

Second, no error in denying a continuance, even though counsel was only appointed 54 days before trial and, on the Friday before trial, the state gave over statements from a confidential informant. Court states that the case was straight forward, so 54 days was enough and the statements from the informant was made to the defendant's investigator.

Third, sending someone to prison for a decade for selling $20 worth of crack does not violate the 8th Amendment.

State v. Chapman. State appeal of order dismissing capital first degree murder. -- Duplin County, Gregory Chapman.

Defendant shot his pregnant girlfriend (19 weeks pregnant). She had emergency surgery and, during the surgery, her twin  babies were "spontaneously aborted," dying minutes after birth.

Trial court heard from doctors and ruled that the twins were never alive-- the fetus were not viable and they were not born alive as defined at common law, and they did not die of inuries inflicted on them in utero, thus no murder charge could issue.

Held: Trial court erred in ruling that this was a juridictional issue. It was improper, at this stage, for the judge to issue what amounts to a ruling on the merits. Court does not rule on any of the substantive issues.

State v. Derbyshire. Appeal of DWI. -- Wake County, Adam Derbyshire.

HELD: Officer did not have reasonable suspicion to perform traffic stop.

Officer testified his basis for reasonable suspicion were: (1) bright headlights; (2) defendant had a blank stare when he passed him; (3) saw him weave within his lane at least once.

Must have more than just weaving to perform a stop -- either need a whole lot of weaving or other factors to give suspicion. This one didn't have enough.

State v. Evans. Appeal of armed robbery and felony murder -- Durham County, Roger Evans, Jr.

No error in failing to give self-defense instruction in the mandate for felony robbery, as they were given on the assault charges and referenced in the robbery instruction.

Sufficient evidence of attempted robbery because there was sufficient proof of intent and an overt act -- i.e. pointed a gun at people and co-defendant says they planned a robbery..

State v. Fisher. Appeal of involuntary manslaughter conviction. -- Henderson County, Scott Fisher.

Defendant, a teenager, got in a fight at a party--then took the victim out in the middle of nowhere and beat him up victim and left him out on a bridge nearby. The victim called his parents to pick him up. They couldn't find him and he eventually froze to death outside.

Defendant argues that the court should have instructed on foreseeability and that the harm -- freezing to death -- was not a foreseeable outcome of his beating the victim up. 

Court ruled that beating him up and leaving him in the middle of nowhere on a 20 degree night was an act that could foreseeably lead to death. No plain error in the court failing to specifically instruct on foreseeability.

State v. Frady. Appeal of 1d sex offense and indecent liberties. -- Transylvania County, Ralph Frady.

New Trial ordered as state called an expert that said that the child's statement (that Defendant sexually assaulted her by touching her privates" was "consistent with sexual abuse" based on the "consistency of her statements over time, the fact she could give sensory details of the event..."

This is improper witness vouching. An expert can only testify about physical evidence that is consistent with abuse, not that the child's story was consistent. That is an improper expert opinion.

State v. Harwood. Appeal of possession of firearm by felon. -- Buncombe County, Edward Harwood.

Defendant appeals MAR denial of 19 convictions of possession of firearm by felon, arguing that he should only have one conviction for the 19 guns he possessed.

State  v. Garris held that "a defendant who had previously been convicted of a felony could only be convicted of and sentenced one time for the simultaneous possession of multiple firearms on a single occassion."

Held that theree was no legal basis for the MAR, as Garris was not a "significant change in substantive law" and, by pleading guilty, defendant waived his right to assert double jeopardy claims.

State v. Martin. Appeal of attempted 2d rape on motion to suppress issue. -- Polk County, Matthew Martin.

T.H. says she was asleep, when defendant had sex with her and she did not awaken. Afterwards, some of her friends beat him up, including with a metal wrench.


Defendant, 21 years old, was interrogated, while in custody for a probation violation. He was shackled and told that the victim "took a polygraph and passed" and said the Defendant could "help himself" if he confessed. Defendant confessed to having sex with T.H. while she slept.

Afterwards, he was Mirandized and confessed again.

Held: Defendant's post-Miranda confession was involuntary, under the totality of the circumstances. Factors: defendant was in custody, the officer made misrepresentations to the defendant, the officer made promises, and defendant was impaired--he suffers from bipolar disorder.


State v. McCoy. Appeal of assault inflicting physical injury by strangling, simple assault, and 2d rape.-- Cumberland County, Willie McCoy, Jr.

First, no error in the Judge refusing to give an IA report on an officer in the case, whom they decided not to call as a witness (after an in-camera review). Court finds that the information was not material (despite counsel argument that they could have challenged the "integrity of the investigation" with it).


State v. Miller. Appeal of intent to sell/deliver marijuana, mainatining a dwelling, and carrying a concealed gun. -- Rowan County, Michael Miller.

Appeal of denial of motion to suppress marijuana found in his hallway closet. 

Facts: Police responded to a burglar alarm and, while walking around the house, found 2 large ziploc bags of marijuana on concrete steps leading to a side door. Also found a broken window at the back. Believing that entry had been made, he entered the home looking for a suspect and called for a K-9. Later, the defendant's mom showed up with a key and gave consent to search. Found drugs in plain site in the house. Opened a dresser drawer and found more drugs. The dog alerted on a closet, they opened the closet and found more marijuana.

Trial court found that police exceeded their legitimate search for suspects by opening a dresser drawer and suppressed the marijuana in their. Found that the search of the closet was legitimate search for suspects, ignoring police testimony that the bag that the marijuana was in "may have been closed until" the K-9 stuck his nose in it.

First, the marijuana in the closet was not fruit of the poisonous tree of the search of the dresser drawer. Rather, it was just the same justified search for an intruder.

But, remanded to trial court to resolve whether or not the drugs in the closet were in plain view.

Interesting Holding: Found that, if the drug dog opened the bag, it was not in plain view. Treat K-9 officers like regular officers-- they can't move things to create plain view. (This is contrary to precedent the Court discusses from the 6th and 8th circuits).

State v. Oliphant and Hamilton. -- Mecklenburg County, Joshua Oliphant and Derrick Hamilton.

Sufficient evidence of robbery where victim approached by two person, even though only one had a gun.  Sufficient evidence of implied agreement to rob in that other person reached for victim's cellphone.

No plain error in referring to two defendants as "defendants." While it is reversible error in a joint trial to charge in a way that sounds like if one is guilty, all is guilty, calling them "defendants" is not enough. 

State v. Pennell. -- Iredell County, William Pennell, IV.

Defendant may attack juridiction of underlying conviction in appealing a probation revocation. The larceny indictment was defective where it described the property taken as "various items of merchandise."

State v. Summey. -- Buncombe County, Darrell Summey.

In a statutory rape case, jury sent out a note and asked for the first date and age of the victim when she was raped the first time. Court declined to answer and a juror asked if it the court could only charge him with that charge if it were not in corroboration of the age reference. Court committed error when it answered "You're correct", by expressing an opinion regarding the victim's age. New trial.

No plain error in referring to the witnesses as "victims."

State v. Wray. -- Cleveland County, John Wray, Jr.

No error in failing to appoint counsel prior to sending defendant for a competency evaluation. This was not a critical stage and no denial of 6th amendment right to counsel.