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.

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