Friday, January 24, 2014

NC Supreme Court Criminal Decision, Jan. 24, 2014

State v. Whittington. -- Glenn Whittington, Nash County, Judge Sumner.

COA Decision Below: State v. Whittington.  Appeal of trafficking convictions, for sale, delivery, and possession.

First, indictments by sale and delivery were defective as it did not name who defendant sold or delivered to.

Second, it was error to admit a lab report showing it was opium, where the analyst was not present at trial. Under statute, if the state gives notice of intent to use a lab report without the analyst, the defendant must give notice of objection 15 days before trial. No evidence was presented that defendant received the lab report or waived the objection.

New trial.
Supreme Court: Reversed decision on grounds that defendant never adequately raised or preserved the confrontation issue at trial. Defendant's only objection at trial was not that he was not provided notice, but that 90-95(g) notice provisions were invalid under Melendez-Diaz. This is not the case. NC Notice and Demand Statute is valid. No evidence that notice was not given and Defendant did not object to the notice and demand the SBI agent appear in court.

Tuesday, January 21, 2014

NC COA Update, Jan. 21, 2014

State v. Carlton. District Court erred in amending citation to charge defendant with a different charge. Can amend, but not to charge a new crime.

State v. McGrady. No error in refusing, under 702, to allow defendant to put on "use of force" expert.

State v. McLean.  No error in refusing to allow pre-trial testing for DNA (or absence of DNA) on shell casings. Court found that such absence would not be relevant to defendant's alibi defense and the purpose of the statute is to test for the presence of DNA, not the absence of DNA.


State v. Stepp. (Joshua Stepp, Wake County). New trial ordered in murder case. In felony murder (sex assault) case, defendant requested an instruction of defense for digital penetration "for medical purposes", as his testimony was that the act was done for cleaning. Court erred in refusing to give the instruction.

State v. Smathers. While no probable cause for a stop, no error in officer stopping under the "community caretaker" doctrine to check on a woman who had hit a deer. (Turns out, she was drunk...)

State v. Williams. In sexual exploitation of a minor case, sufficient evidence where Defendant set up a web-cam to watch the victim "dance in her pajamas." No error in closing courtroom during display of graphic images. Downloading of image qualifies as "duplication" for second degree exploitation (N.C. Gen. Stat. 14-190.17).

Tuesday, January 7, 2014

NC Court of Appeals Criminal Decisions, Jan. 7, 2014

State v. Dahlquist. Appeal of sentencing in second degree murder case. -- Allegra Dahlquist, Wake County, Judge Ridgeway.

First, Defendant alleges trial court erred in failing to find mitigating factors of age and support system in the community. Defendant was 17 and an expert testified about her immaturity.  "By its use of the term ‘immaturity,’ the General Assembly contemplated an inquiry which is ‘broader than mere chronological age’ and which is ‘concerned with all facts, features, and traits that indicate a defendant’s immaturity and the effect of that immaturity on culpability." Not error to fail to find this when the facts of the case show Defendant was involved in planning the killing. Further, the fact Defendant had a large family does not prove existence of a support system in the community.

Second, no error for trial court to rely on evidence from co-defendant's trials because Defendant, herself, relied on such evidence in her presentation.

State v. Epps. Appeal of voluntary manslaughter conviction. -- Adrian Epps, Gaston County, Judge Lewis.

During fight, Defendant got a kitchen knife and killed a man.

First, no error in failing to instruct on involuntary manslaughter. Here, stabbing with a knife is not the kind of attack that was not ordinarily a danger to human life or merely criminal negligence. Defendant went and got a knife. His reaction was not instinctive or reflexive, but was voluntary.

State v. McKinney. Appeal of denial of motion to suppress -- Walter McKinney, Guilford County, Judge Wood.

Complaint lodged with police about heavy traffic at a house and drug deals in a parking lot. Police stopped a car that went to the house and left six minutes later. Found $4,258 in cash and 7 grams of marijuana. Had a phone with texts with someone named Chad. Used this info to get a search warrant and search the house, finding drugs and arresting the Defendant.

Defendant challenged search, alleging the search warrant was not supported by probable cause.

Held: Search unlawful.  While the evidence all shows the person in the car had recently been in a drug transaction with someone named Chad, there was no evidence that showed there would be drugs at Defendant's apartment.


State v. McRae. Appeal of first degree kidnapping. -- Jamal McRae, Robeson County, Judge Locke.

Held: Insufficient evidence of 1st degree kidnapping, where underlying felony listed in indictment was larceny. State failed to provide any evidence that the car was worth more than $1,000. Insufficient evidence of felony larceny, thus insufficient evidence of kidnapping.

State v. Minyard. Appeal of sex offense and indecent liberties conviction. -- James Minyard, Burke County, Judge Martin.

First, sufficient evidence of  attempted sex offense where victim testified that defendant put his penis in his butt, even though wasn't able to specifically describe penetration. This was sufficient to show intent.

Second, sufficient evidence of 5 counts of indecent liberties, where victim testified that Defendant touched him "four of five times". Defendant argues that this is insufficient proof of 5 times and insufficient to establish that there were separate incidents. Court disagrees.

Third, no error in failing to hold a capacity to proceed hearing. During jury deliberations, defendant took a handful of pills and drank 80 ounces of beer.  "Because Defendant voluntarily ingested these substances in a non-capital trial, he voluntarily waived his constitutional right to be present."

State v. Moir. Appeal of denial of removal from sex offender registry. -- James Moir, Catawba County, Judge Boner.

In 2001, Defendant was found guilty of two counts of indecent liberties. In 2012, he filed a petition for termination of sex offender registry. The court denied.

Held: Court improperly denied termination from registry.

Under  N.C. Gen. Stat. § 14-208.12A, a Defendant can apply for relief from registration 10 years after the date of conviction. The court may grant relief if the defendant hasn't been arrested for other registrable offense, relief complies with Federal law, and is not a current threat to safety. Trial court then found that touching the genital areas of a minor counts as "abusive sexual contact" under Federal law. Abusive sexual contact, under federal law, mandates registration of at least 25 years.

Court held that you evaluate, under the federal rules, the elements of the crime, not the underlying case facts. As a matter of law, indecent liberties is not abusive sexual contact.
 
State v. Rayfield. Appeal of child sex case. -- Douglas Rayfield, Gaston County, Judge Poovey.

First, no error in failing to suppress fruits of search warrant. Victim describe multiple assaults by her stepfather and described pornography he played during the assaults. This was the basis for the search warrant. Held that, even though the assaults occurred 3 1/2 years previously, they were not too stale, because the activity took place over a number of years rather than was a single isolated incident, to give probable cause for the warrant to be issued.

Second, no 404(b) error in admitting evidence of adult pornography seized in his home and evidence of a different 14 year old who had "voluntary" sex with the Defendant.  Pornography was relevant as victim's testimony was that Defendant played adult and child pornography during assaults and proper limiting instructions were given to reduce risk of unfair prejudice.  On the other 14 year old, defendant did not clearly cite 404(b) during his objection and has waived that issue (but would have lost anyway, as they are substantially similar to the charged conduct and admissible under 404(b)).


State v. Rodelo. Appeal of trafficking conviction -- Crecencio Rodelo, Randolph County, Judge Long.

Police went to a warehouse. A man came out, said he worked there and consented to the search. Police found a million bucks and a bunch of cocaine. The defendant was sleeping in the tractor-trailer.

First, no error in denying motion to suppress.  Defendant, who did not possess any ownership interest in the warehouse, did not have standing to challenge the search. Further, the agents could reasonably assume that the warehouse worked had authority to give consent.

Second, sufficient evidence of constructive possession. To prove constructive possession, you must prove defendant was present and that other incriminating factors exist that show the drugs were his. Here, the other factors were: (1) defendant hid from police when they entered the warehouse; (2) defendant knew where the money was hidden; (3) the entire warehouse smelled of cocaine.

State v. Sherman. Appeal of first degree murder conviction. -- Travis Sherman,  Wake County, Judge Ridgeway.

Appeal of denial of for cause challenges to two jurors: (1) a juror who indicated he would form opinions during trial, rather than waiting until the end, and (2) a juror who was a Marine due at Quantico before the trial was scheduled to end.

First, to preserve a challenge for cause, you must: use all your peremptories, renew your challenges, and state you would strike the juror if you had more peremptories. Defendant did that here.

Second, no error on juror #1, as the juror said he would do his best and follow the law; as to juror #2, no basis in law for this denial of cause as error, as no evidence #2 was unable to render a fair and impartial verdict.

State v. Snelling. Appeal of larceny, robbery and kidnapping convictions.-- Edward Snelling, Wake County, Judge Fox.

First, no error in instructions. State does not have to prove actual possession of a firearm. If the robber holds out to the victim that he has a gun, he is presumed to possess a working firearm for robbery with a dangerous weapon, unless the defense can prove otherwise.

Second, on sentencing, where Defendant stipulated to the PRL and sentencing points, no requirement for judge to colloquy defendant on that on the record (as required in a plea situation).

Third, error to sentence as PRL III because the state did not provide notice of probation points and defendant did not waive such notice.