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Criminal Practice

Aug 7, 2023

Criminal Practice – Sentencing – Felon in Possession – Prior State Conviction – Controlled Substance Offense

Defendant was previously convicted of violating North Carolina’s G.S. § 90-95(a)(1). The least culpable conduct criminalized by this statute includes an “attempted transfer from one person to another of a controlled substance.” Although similar language in W. Va. Code § 60A-1-101(h) was found not to qualify as a controlled substance offense in United States v. […]

Jul 25, 2023

Criminal Practice – Due Process – First Impression – No-Arrest Agreement – Insufficient Cooperation

The government must comply, not only with plea agreements and non-prosecution agreements, but also with law enforcement officers’ agreements not to arrest. In this case, it is unclear whether the officer made a promise not to arrest if defendant gave up all the cocaine that he had in his possession, whether defendant relied on this […]

Jul 24, 2023

Criminal Practice – Search & Seizure – Traffic Stop – Extension – Invalid Consent

Armed, uniformed police officers stopped defendant for speeding on a dark, largely deserted street in the middle of the night. After running a check on defendant’s license, in a show of authority, one of the officers reached into defendant’s car through the window, unlocked and opened the car door, and told defendant to get out […]

Jul 24, 2023

Criminal Practice – Search & Seizure – Traffic Stop – K9 Sniff – No Extension

Despite a conflict in the evidence as to the timing of a K9 open-air sniff around defendant’s stopped car, there is evidence to support the trial court’s finding that the sniff occurred while a deputy was explaining a warning ticket to the car’s driver. Although the deputy subsequently asked the driver if there were contraband […]

Jul 24, 2023

Criminal Practice – Murder by Torture – Proximate Cause – Toddler’s Pneumonia

The state’s evidence showed that defendant chronically physically and sexually abused his two-year-old daughter (J.S.), leading to her loss of appetite and severe malnutrition, which left her unable to fight off the pneumonia caused by her weak body’s inability to breathe properly. The pneumonia which caused J.S.’s death was proximately caused by defendant’s torture of […]

Jul 24, 2023

Criminal Practice – Competency – Judge’s Colloquy – Waiver of Right to Indictment

Defendant contends the trial court erred in failing to order a mental examination of defendant; however, defendant’s capacity was not questioned by any party. Further, during his colloquy with the trial judge, defendant said that (1) his medication helped him function better, (2) he understood the nature of the charges “for the most part,” and […]

Jul 24, 2023

Criminal Practice – Trial Tactics – Out-of-State Witness – Failure to Call – Attorneys

Where defendant waited until the day his trial was scheduled to begin to make it clear that he was insisting on calling an out-of-state witness – a tactic defendant’s appointed counsel thought was not in defendant’s best interests – the trial court did not err in declining to instruct counsel to begin the process of […]

Jul 13, 2023

Criminal Practice – Probation Revocation – Superior Court Jurisdiction – Felony & Misdemeanor

When defendant was charged with possession of methamphetamine and possession of drug paraphernalia, the “district court” box was checked on both bills of information. However, because the felony and misdemeanor were based on the same act or transactions, these charges were properly consolidated and thus properly heard before the superior court. We presume the district […]

Jul 13, 2023

Criminal Practice – Alford Plea – Judgment – Clerical Error

The trial court accepted defendant’s Alford plea; however, at defendant’s sentencing hearing a few months later, the trial court entered a judgment that indicated defendant pleaded guilty, but not pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). As the state concedes, the judgment must be remanded for the correction of this clerical error […]

Jul 13, 2023

Criminal Practice – Search & Seizure – Surveillance System – Consent to Search – Apparent Authority – Dissolved Business

Even though the tattoo business co-owned by defendant and Spencer Sellers had been administratively dissolved before defendant shot and killed the victim outside the tattoo parlor, the responding officer could rely on consent from an independent contractor – who was present at the shop and who contacted Sellers – to access the business’s surveillance system. […]

Jul 13, 2023

Criminal Practice – Discovery – Motion to Continue – Ineffective Assistance Claim

Although defendant did not receive audio recordings until the week leading up to his trial, since he had previously received summaries of the recordings, defendant has not demonstrated that he and his counsel could not adequately prepare for trial in the nine months leading up to trial. The trial court did not abuse its discretion […]

Jul 13, 2023

Criminal Practice – Assault on a Female – Credibility – Prior 50B Dismissals

Before defendant’s trial for assaulting her, the victim had filed two domestic violence complaints against defendant. She dismissed one, and the other was dismissed when she failed to appear in court. The trial court did not prejudicially err in refusing to allow defendant to question the victim about the results of her domestic violence complaints […]

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