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Criminal Practice

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 […]

Jul 13, 2023

Criminal Practice – Closing Argument – Credibility – Jury Instructions

Although defendant contends the prosecutor’s remarks during summation intimated that the trial judge believed the state’s witnesses, the judge’s jury instructions cured any prejudice arising from such remarks. We find no prejudicial error in defendant’s conviction for malicious conduct by a prisoner. During its closing argument, the state argued, “Y’all, you’re not going to hear [&he[...]

Jul 13, 2023

Criminal Practice – Accessory to Murder – Crime Reporting Duty – Prosecutor’s Closing Argument – ‘Arrogant Bastard’

According to an SBI report, one of the law enforcement officers testifying against defendant had previously failed to report an incident in which another officer put a police GPS tracker on his ex-girlfriend’s car. The trial court allowed defendant to question the witness about whether a citizen was required to report a crime, but the […]

Jul 13, 2023

Criminal Practice – Constitutional – Jury & Jurors – Replacement during Deliberations – Right to Be Present

As permitted by recently amended G.S. §§ 15A-1215 and -1221, the trial court permitted an alternate juror to replace a regular juror who did not show up for the second day of deliberations. As required by § 15A-1215(a), the trial court instructed the jury to begin its deliberations anew. Defendant may not, for the first […]

Jul 13, 2023

Criminal Practice – Prior Bad Acts – Cocaine Possession – Control over Car

Defendant was driving his cousin’s car, he was stopped for a window-tint violation, he ran, marijuana was discovered on his person, and cocaine was discovered in the car. The trial court did not err when it allowed law enforcement officers to testify about prior incidents when they stopped defendant while driving the same car. The […]

Jul 13, 2023

Criminal Practice – Armed Robbery, Larceny & Kidnapping – Intent – Helping a Friend

While helping a friend from rehab (David Peterson) move, defendant apparently used methamphetamine. On the drive to the truck rental agency, defendant took Peterson’s gun out of the car’s console, tried to force Peterson to wreck the car, and – when Peterson stopped the car and ran – forced Peterson back into the car. The […]

Jul 12, 2023

Criminal Practice – Child Pornography – In-Court Identification – Mask & Beard – Sentencing

One of defendant’s former girlfriends wasn’t immediately able to identify him in court. The government asked the witness whether defendant had a beard when she knew him – she said he did not – and suggested that she might be able to recognize him without his mask. While it might have been ill-advised for the […]

Jul 12, 2023

Criminal Practice – DWI – Search & Seizure – Warrantless Blood Draw – Exigent Circumstances – ‘Driver’ Testimony

Responding to a report of a single-vehicle accident, (1) the responding officer found defendant seriously injured near the vehicle, (2) the officer spent an hour investigating the scene before following defendant to the hospital, (3) defendant was unresponsive and the officer believed he might need surgery, and (4) the officer feared a trip to the […]

Jul 12, 2023

Criminal Practice – Murder – Jury Instructions – Voluntary Manslaughter – Heat of Passion – No Evidence

Defendant contends he was entitled to a jury instruction on the lesser-included offense of voluntary manslaughter, arguing he acted in the heat of passion. However, despite evidence that defendant had unprotected sex with the victim and that the victim was HIV positive, there was no evidence that the victim told defendant he was HIV positive […]

Jul 12, 2023

Criminal Practice – Hearsay – Prior Recollection Recorded – Not Adopted or Recalled – Cruelty to Animals

When his neighbor’s dog was shot and killed, witness Tommy Lozier signed a statement – transcribed by his son – attesting that he heard a gunshot at the dog owner’s house, he saw defendant running from the house’s front gate with a rifle, and defendant told him he had shot the dog and killed him. […]

Jul 12, 2023

Criminal Practice – Intent – Attempted Armed Robbery & Attempted Murder

Even though defendant did not make any spoken demand for money or property, the jury heard testimony that defendant tapped on the victim’s car window with a revolver and demanded that the victim open his car door. On these facts, a jury could reasonably infer that defendant made an overt act in furtherance of an […]

Jul 12, 2023

Criminal Practice – Second-Degree Murder – DWI – Expert Testimony – Speed

Where the state’s crash reconstruction expert was unable to use either of the two scientific tests he had to determine the rate of speed involved in the accident that killed the two victims here, the trial court properly allowed the expert to present evidence of an accident between similar vehicles at known speeds, which resulted […]

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