Court of Appeals Saves Us from "Chaos and an Absence of Justice," Criminal Cases, NC Court of Appeals 7/17

State v. Kelly 

A particularly horrible baby killing case in which the Court of Appeals informs an overzealous appellate attorney that a jury is not to be instructed on jury nullification lest “it would lead to chaos and an absence of justice in North Carolina.” Sounds like the Court of Appeals wanted to get in on some of that overzealous action.


State v. Askew and State v. Talbert 

The State filed a probation violation against Defendant, who was to have an approved residence plan upon release from prison. This violation was filed against him prior to his release from prison because he couldn’t set up anything while still in prison. The Court of Appeals finds one cannot violate their probation before given the opportunity to do so. Precogs be damned.


State v. Bell

Three holdings (of interest):

1)      No need to indicate voluntariness of a consent to search in an Order if no dispute in evidence as to voluntariness.

2)      The elements of kidnapping are part of certain offenses. Unless the kidnapping elements are not related to the accompanying offense, a Defendant cannot be convicted of both.

3)      If you tell a kid to wait in a room while you hold his mother at gunpoint and force her to perform sexual acts, you have kidnapped him.


State v. Brunson 

Again, three holdings (of interest):

1)      Crazy defendant who kept firing attorneys is not denied effective assistance of counsel.

2)      It’s no big deal if you are denied probable cause hearing so long as it does not lead to a possibility of a different result at trial. Constitutional rights? Pshaw!

3)      The trial court may quash subpoenas if there is no possibility for a different outcome.


State v. Collins 

Defendant has buyer’s remorse after pleading to assault on handicapped person. The Court finds that the plea was his informed choice and that there were facts to support the plea. He then goes on to challenge the indictment for not indicating the type of handicap or that the Defendant knew of the handicap. The Court upholds the conviction.   


State v Harris 

If you don’t object at trial to statements made during closing, there must be “gross impropriety” in order to require the trial Court to intervene on its own.


State  v. Hunt 

When you have previously sexually assaulted someone, it’s a bad idea for your attorney to ask you if you have “ever done such a thing before,” but it’s not ineffective assistance of counsel because it was not prejudicial in light of the other evidence. It is, however, ineffective assistance of counsel to fail to argue a double jeopardy issue.

State v. Mather 

Defendant convicted of carrying concealed weapon despite having a permit following bringing handgun into a bar and getting his drink on. It’s illegal to carry a concealed weapon while drinking. Defendant argues that the indictment was insufficient because it does not state allege that the Defendant had been consuming alcohol. Court of Appeals holds that an indictment need not include an exception if it is not the within the State’s burden to prove that said exception applies.  


State v. Robinson 

Defendant denied motion to be evaluated to determine whether he is competent to stand trial. The motion was made on the eve of trial with affidavits supporting a deteriorating mental condition. The Court denied the motion and proceeded with trial. The Court of Appeals states that this is an abuse of discretion if there is supporting documentation showing a need for evaluation. They may have remanded for new trial but, unfortunately for the Defendant, he put his doctor on the stand on the fourth day of trial who stated that he believed the Defendant to be competent.

Motion to suppress statements made during an recorded interrogation because he is borderline retarded (really) and didn’t understand his rights. The Court noted that he had previous experience in the criminal justice system, was not misled by the officers, and not deprived of necessities. Absent any other reason to believe that he didn’t understand the Miranda warning and waiver, the Court need not suppress the statements.


State v. Rollins 

During a rape trial, the trial Court closed the Court during victim’s testimony over Defendant’s objection. Court of Appeals states that to close a hearing (1)  “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,” (2)  “the closure must be no broader than necessary to protect that interest,” (3)  “the trial court must consider reasonable alternatives to closing the proceeding,” and  (4)  “it must make findings adequate to support the closure.” An absence of findings altogether is error. There must be sufficient findings for the Appellate Courts to review the propriety of the decision. The Court remanded the case to the trial court for a determination as to whether closure was necessary.

The Court also determined that there was an error in determining that out-of state conviction for burglary in Florida was sufficiently similar to a NC conviction for burglary. Instead, burglary in Florida is similar to felony breaking and entering in NC. Remanded for new sentencing hearing.