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Criminal Practice

Jan 25, 2023

Criminal Practice – Search & Seizure – Cellphone Search – Affidavit-Supported Warrant – Sufficient Nexus

The trial court’s unchallenged findings of fact show that (1) a victim reported a home invasion in which a distinctive red and black suitcase was stolen from his home; (2) a neighbor provided eyewitness testimony that he saw an older-model, dark Lexus with chrome rims near the victim’s home at the time of the invasion; […]

Jan 25, 2023

Criminal Practice – Surveillance Video – Police Officers’ Identification – Changed Appearance – Right to Remain Silent

Bullets were fired into the victim’s house, seriously wounding her. The victim’s surveillance video was introduced into evidence, and the trial court allowed three police officers to identify defendant in the video. Where (1) the officers testified that they had previously encountered defendant before viewing the surveillance video; (2) the first officer to testify noted […]

Jan 25, 2023

Criminal Practice – Harbison Error – Closing Argument – ‘Caught in the Act’ – Defendant’s Consent

In his closing argument, defense counsel made several references to defendant having been “caught in the act.” Such statements required defendant’s consent under State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985). The record does not indicate that defense counsel or the trial court engaged with defendant – who maintained his innocence throughout the […]

Jan 25, 2023

Criminal Practice – Solicitation to Murder – Joker’s Harley – Kill List – Closing Argument – Mass Shooting References

Even though defendant’s girlfriend, “Patty,” did not know about defendant’s kill list and so did know the identity of defendant’s intended targets, since defendant asked Patty if she wanted to be the Harley to his Joker (defendant: “You know how Joker and Harley kill people? That’s what I’m getting at.”), defendant nonetheless solicited Patty to […]

Jan 25, 2023

Criminal Practice – Competency – Examination Ordered – Waiver

When defendant was jailed in 2018, his then-counsel requested, and the trial court ordered, a competency evaluation. However, the evaluation did not occur. Defendant was released on bail, hired new counsel and was tried in 2021 without raising the competency issue. On appeal, defendant argues only his right to an evaluation under G.S. § 15A-1002 […]

Jan 23, 2023

Criminal Practice – Search & Seizure – Probable Cause – Drug Dog – Failure to Alert – Other Evidence

The fact that a drug dog failed to alert on defendant’s car did not require law enforcement officers or the trial court to ignore all the other circumstances giving rise to the officers’ probable cause to search defendant’s car. We affirm the trial court’s denial of defendant’s motion to suppress the heroin found in his […]

Dec 27, 2022

Criminal Practice – Sentencing – Career Offender – S.C. Marijuana Conviction – Intent to Distribute

Because of his prior South Carolina convictions, defendant was sentenced as a career offender. One of those convictions was under a South Carolina statute that encompasses both simple possession and more serious drug offenses; nevertheless, defendant’s sentencing sheet shows that he pled guilty to possession “w.i.t.d.” or possession with intent to distribute, which counts as […]

Dec 27, 2022

Criminal Practice – Lying to the FBI – 2 Lies/Single Interview – Multiplicitous Counts

Where defendant told two lies during a single interview with the FBI, defendant was only guilty of one count of lying to the FBI in violation of 18 U.S.C. § 1001(a)(2). We vacate one of the two convictions under § 1001(a)(2) and remand for resentencing. We affirm defendant’s remaining conviction. Facts Defendant had previously traveled […]

Dec 27, 2022

Criminal Practice – Constitutional – Double Jeopardy & Due Process – Felony Child Abuse & Murder

Even though defendant’s 1998 conviction for felony murder appears to be a lesser-included offense of the current charge of felony murder – brought when the victim succumbed to his injuries after years of constant medical care – since the state could not have charged defendant with murder in 1999, we apply the exception to the […]

Dec 27, 2022

Criminal Practice – Valid Indictments – Victim’s Initials & Date of Birth – Satellite-Based Monitoring

The indictments charging defendant with rape and statutory sexual offense identify the victim by the victim’s date of birth and initials. These indictments are facially valid. They provided defendant with ample notice to prepare a defense, as well as adequately defining the offenses so that defendant could plead the verdicts in bar of any double […]

Dec 27, 2022

Criminal Practice – Rape of a Child – Constitutional – Right to Remain Silent – Prosecutor’s Closing – Prior Bad Acts – Victim’s Sisters

In the state’s summation, the prosecutor referred to evidence that, when the victim’s father and brother confronted defendant about his assaults on the victim, he said nothing. In a case which centered around the credibility of the victim versus defendant, the prosecutor was not commenting on defendant’s Fifth Amendment to remain silent; instead, the prosecutor […]

Dec 27, 2022

Criminal Practice – Probation Revocation – Anders Review Request – Appellate Rules

Defendant did not properly notice his appeal pursuant to N.C. R. App. P. 4; we grant defendant’s petition for a writ of certiorari. Because defense counsel has found no meritorious basis for appeal, defendant asks us to suspend N.C. R. App. P. 28 to consider arguments not raised in his brief which might have otherwise […]

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