Tuesday, September 17, 2013

COA Update, Sept. 17, 2013

This post only highlights cases I found interesting.

State v. Barnes. -- Wayne County, Christopher Barnes.

Defendant properly convicted for possession controlled substance in jail. Defendant argued that there was no intent, as he was brought to jail involuntarily. Court held that knowing was enough, no intent needed to be shown beyond that.


McGee dissents.

State v. Carr. -- Cumberland County, James Carr.

No error in failing to strike juror who said he had a friend murdered in the 1980s and that "he thing that affects me is there seems to be loopholes when a person is guilty and the loopholes allow them to get out of it, and I don’t think that’s justice.” When defense counsel asked, “And that you would not be able to put your feeling about loopholes completely aside and, therefore, you don’t think you could be fair and impartial in this case" Juror 4 responded, “Correct.”

No error because the juror then later said they would follow the law.

Basic rule of jury selection: if you say you can follow the law, then nothing else matters, no matter how much bias you admit..

State v. Jackson. -- Mecklenburg County, Damian Jackson.

Held that a show-up identification was impermissibly suggestive where police took defendant out of a car, shined a light on him, and told the victim "we think we found the guy." 

However, the in-court ID was admissible because other factors showing reliability -- the encounter lasted 5 minutes (which the court seems to say means she had a good opportunity to view the assailant), the pre-ID description somewhat matched (5'9" with dreadlocks wearing a white tank top and gray sweatpants -- the court says his clothing didn't match this but doesn't tell us exactly how) and she was "100%" sure.

Effective Outcome: show-ups, while disfavored and unreliable, will always be admissible, because the court can hang its hat on anything to protect the arrest.

State v. Kirkwood. -- Johnston County, Alphonso Kirkwood and Larell McDaniel

No double jeopardy problem in convicting defendant of three counts of shooting into occupied property, even though the shots were fired in quick succession, because they hit different parts of the house and were fired from a revolver which had to be cocked each time it was fired.

State v. Tinney. -- Moore County, Andrew Tinney.

Inclusion of an invalid plea appeal term (including the right to appeal the waiver from juvenile court) did not render the plea invalid. While normally that would (if the plea includes the right to appeal something that cannot be appealed), in this case the Court questioned the defendant on the issue and informed him that the provision was likely unenforceable. Because the defendant knew this and proceeded anyway, the plea was not invalid.


Tuesday, September 3, 2013

Court of Appeals Update, Sept. 3, 2013

State v. Cooper.  Appeal of murder case. -- Wake County, Bradley Graham Cooper.

Court improperly refused to let defense expert testify that supposedly incriminating data found on defendant's computer could not accurately be timestamped (time was crucial to the incriminating data) and that the data might have been planted. Any violation of the discovery rules (relating to the last minute finding of the expert) was outweighed by the defendant's constitutional right to present a defense. Further, the courts failure to hold an in-camera review of FBI computer analysis information on vague "national security grounds" violated due process.

State v. Gaston.  Appeal of murder case. -- Mecklenburg County, Marty Tarrell Gaston.

No error in refusing to give instructions on self-defense ansd voluntary manslaughter, where defendant's theory was that the gun went off by accident and no evidence was presented that defendant in fact formed a belief that it was necessary to kill to protect himself.

State v. Gilbert. Appeal of indecent liberties.  -- Forsyth County, Alvin Gilber.

Short form indictment is sufficient to charge statutory rape of a 13, 14, or 15 year old. Did not have to specifically allege the age of the victim.

State v. Verkerk.  Appeal of DWI. -- Orange County, Dorothy Hoogland Verkerk.

Strangely, in this case, a firetruck flashed it lights and pulled the defendant over. Remanded for determination if the firetruck was a state actor and, if so, did the fire truck have reasonable suspicion to make the stop.

Held that the truck did not have probably cause to make the stop as a citizens arrest under N.C. Gen. Stat. 15A-404.