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Home / Opinion Digests / Criminal Practice / Criminal Practice – Evidence – Hearsay – Business Records Exception – Foundation – NPLEx – Plea Rejection – Continuance Right – Waiver – Destruction of Evidence

Criminal Practice – Evidence – Hearsay – Business Records Exception – Foundation – NPLEx – Plea Rejection – Continuance Right – Waiver – Destruction of Evidence

State v. Hicks (Lawyers Weekly No. 15-07-0978, 24 pp.) (John Tyson, J.) Appealed from Avery County Superior Court (Gary Gavenus, J.) N.C. App.

Holding: Where a police officer thoroughly demonstrated his understanding of the NPLEx database (a federal public registry used to track an individual’s pseudoephedrine purchases); the methods by which data are gathered, transmitted and stored; and the underlying basis for an NPLEx report which was entered into evidence, the officer’s testimony provided a sufficient foundation for the admission of the computer report from the NPLEx database as a business record.

We find no error in defendant’s convictions of manufacturing methamphetamine and maintaining a dwelling for the purpose of keeping methamphetamine.

When the trial court rejected a proposed plea bargain, G.S. § 15A-1023(b) gave defendant the right to a continuance. However, defendant voluntarily waived this right by (1) expressly consenting to being arraigned and proceeding to trial after the trial court rejected the plea agreement and (2) failing to assert the statutory right until jeopardy attached, during the second week of trial, and after the state had presented evidence for two and a half days. Defendant waived his right to a continuance by his failure to assert it in apt time.

Although the application for a warrant to search defendant’s home included a request to destroy hazardous evidence, no destruction order was ever entered. Nevertheless, the type of evidence at issue (hydrochloric acid generators) is not generally preserved. The record and trial testimony amply support the trial court’s conclusion that law enforcement did not act in bad faith when they destroyed the hazardous evidence. Defendant did not move to preserve the evidence until it had already been destroyed. He failed to show that the trial court abused its discretion in denying his motion for sanctions.

No error.


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