Tuesday, October 15, 2013

NC Court of Appeals Update: Oct. 15, 2013

Interesting Cases

State v. Thomas Murder -- Columbus County, Danny Thomas.

New trial ordered in 1st degree murder case. During evidence, it came to light that one of the jurors knew a witness. The judge questioned the juror and allowed the defense and state to question her. The court found there was not a basis for a cause challenge. The Defense requested to use a peremptory stirke, which was denied.

Held: Once the court re-opens voir dire (by questioning a juror), under N.C. Gen. Stat. 15A-1214(g), the Court must allow the defense to use remaining strikes on that juror. Held that this is so even if a jury has been empaneled.

State v. Blankenship. DWI -- Buncombe County, Seth Blankenship.

No probable cause to make a stop where a caller calls 911 and tells 911 that a driver is driving erratically, where the officer did not observe any traffic violations.

State v. Simpson. Drugs -- Onslow County, Ladonn Simpson

Insufficient evidence for maintaining a vehicle where court found no evidence that defendant allowed others to use his car for drugs.

Friday, October 4, 2013

NC Supreme Court Criminal Decisions, October 4, 2013

State v. Hester. Darryl Hester, per curiam affirmed.

Post on Opinion Below: State v. Hester.  Mecklenburg County. Appeal of felony larceny conviction and habitual felon. -- Darryl Hester.

Defendant stole hair extensions from a beauty supply store. Sentenced to 7 years.

The state played a poor quality copy of the surveillance video at trial, while victims testified that the original video was of higher quality and clearly showed defendant committing the crime (which the grainy one did not). Defendant's attorney did not object.

Defendant testified. Said it was another employee that stole the stuff, but defendant had paid $900 in restitution anyway.

First, no plain error in allowing the victims to describe what the good quality video showed.

Second, IAC dismissed without prejudice.

State v. McDaris. Per curiam affirmed of unpublished decision below.


State v. McKenzie. Bobby McKenzie, Per curiam reversal.

Post on Opinion Below: State v. McKenzie.  Duplin County. Appeal of Superior Court order reversing dismissal of DWI.

Issue: was defendant subject to double jeopardy due to civil revocation of his CDL?

Held: The prior one-year CDL revocation under 20-17.4(a)(7) was a prior criminal punishment. Subsequent DWI prosecution was barred by double jeopardy. While 10 day and 30 day revocations are civil remedies, the 1 year revocation was a criminal punishment.

Hunter dissents.

State v. Pizano-Trejo. Fransisco Pizano-Trejo, per curiam affirmance (3-3, no precedential value) of unpublished decision below.

State v. Rollins. Demario Rollins, per curiam affirmed.
Post on Opinion Below: State v. Rollins. Mecklenburg County. No error in failing to give defendant hearing on his MAR.

Defendant filed an MAR based on juror misconduct--watching publicity during the trial. The trial court denied a hearing, stating "[n]othing in the motion or affidavit indicates which news broadcast the juror supposedly viewed, the degree of attention the juror paid to the news story about the defendant’s case, or the extent of any information the juror actually received or remembered from the news broadcast. There is nothing in the motion or affidavit to indicate that the juror shared any of the contents of the news story with other jurors during the trial or the jury’s deliberations."

Defendant had argued that TV at that time included references to other crimes, excluded from the jury's consideration.

COA upheld, saying, "There is insufficient evidence to determine whether juror misconduct occurred as defendant’s motion and Bossard’s affidavit merely contained general allegations and speculation."

Judge Hunter dissents.
State v. Wilkes. Timothy Wilkes, per curiam affirmed.

Post on Opinion Below:  State v. Wilkes.  Moore County. Appeal of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), child abuse, and AWDWISI.

First, sufficient evidence of intent to kill where defendant hit female victim in the head multiple times with a baseball bat, continuing to hit her after she fell to her knees.

Second, no error in convicting on both assaults.  Here, defendant was interrupted while beating the victim, went to beat the child, then came back to hit her more. This was a separate assault in that it was distinct in time, caused injuries to different parts of her body, and was the result of separated thought processes.

Hunter dissents and says this was one continuous assault.

Tuesday, October 1, 2013

Court of Appeals Update, Oct. 1, 2013

Interesting Cases:

State v. Ashe. Harnett County -- Shannon Ashe.

Court erred by failing to intervene sua sponte and holding a competency evaluation where testimony showed Defendant was schizophrenic and had outbursts during trial. Court must hold such a hearing whenever confronted with "substantial evidence" that the defendant "may be incompetent." New trial ordered.

State v. Call.  Rockingham County -- Jerry Call.

No 6th amendment confrontation problem for allowing out-of-court statements of deceased store manager's statements to store investigator about a robbery, on grounds that (1) not to the police (Crawford) and (2) were made prior to indictiment.  Thus, they completely fall outside the 6th Amendment.

In re Cline. Upholding the removal of Tracey Cline as DA in Durham County. No legal analysis here, but if you're interested, read the case.