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Tag Archives: Criminal Practice

Criminal Practice – Identification – Photo Line-Up – Investigating Officer’s Presence – EIRA

State v. Stowes Even though an investigating officer was present when the victim picked defendant out of a photographic line-up, there was no evidence that the officer made any movements which could have influenced the victim, the victim was 75 percent certain of his identification, the line-up was conducted within days of the robbery, and the robber was in the victim’s store for 45 to 50 minutes and spoke with the victim a number of times. The only impediment to the victim’s view of the robber was that the robber was wearing sunglasses. We find no plain error in the trial court’s ruling that the line-up was not impermissibly suggestive.

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Criminal Practice – B&E – Burning Personal Property – Evidence – Prior Bad Acts – Perpetrator’s Identity – Victim’s Ex-Husband

State v. Adams While the state presented evidence that defendant’s cell phone was in Raleigh at the time of the January 2009 break-in and was back in Atlanta the same evening, the state presented no forensic or eyewitness evidence to show that it was defendant who broke into his ex-wife’s Raleigh apartment, destroyed and scattered personal property there (including burning photographs of the two of them), and stole jewelry he had given her.

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Criminal Practice – Attorneys – Defendant’s Wishes – Frivolous Defenses – Ethics

State v. Jones Even though an attorney is bound to comply with his client’s lawful instructions, defendant sought to have his attorneys present claims that they felt had no merit. Thus, the impasse was over whether defendant could compel his counsel to file frivolous motions and assert theories that lacked any basis in fact. To do so would have been a violation of the attorneys’ professional ethics. Because nothing in our case law requires counsel to present theories unsupported in fact or law, the trial court did not err in failing to instruct counsel to defer to defendant’s wishes.

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Criminal Practice – First-Degree Murder – Jury Instructions – Second-Degree Murder – No Evidence – Victim’s Character

State v. Laurean Even though defendant contends the state presented no evidence as to the circumstances immediately surrounding his killing of the victim, there was evidence of premeditation and deliberation, and there was no evidence to support a jury instruction on second-degree murder. Consequently, the trial court correctly declined to instruct the jury on second-degree murder.

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Criminal Practice – Sex Offender Registration – Removal Petition – Automatic Termination — Satisfied Conditions – Trial Court Discretion

In re Hamilton Even though, at the time of petitioner’s conviction in 2001, G.S. § 14-208.7 would have automatically terminated the requirement that he register as a sex offender after 10 years so long as he had not re-offended, statutory amendments in the interim have imposed a requirement that petitioner apply to the superior court for relief from the registration requirement.

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Criminal Practice – Murder & Racketeering — Evidence – Gang Expert

U.S. v. Palacios A defendant who served as “first word” for a local “clique” of the transnational gang La Mara Salvatrucha cannot overturn his murder and racketeering-related convictions for the murder of a woman who had contacts with rival gang members; the 4th Circuit approves the use of testimony from a police expert on gangs as an element of the case against defendant.

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Criminal Practice – Guilty Plea – Attempted Withdrawal – Loss of Government Benefits — Fraud

U.S. v. Nicholson A former mail carrier cannot withdraw his guilty plea to a charge of fraudulently obtaining workers’ comp benefits under the Federal Employment Compensation Act after he learned the plea would cause a loss of government benefits; the 4th Circuit says the trial court did not violate Fed. R. Crim. P. 11 by not advising defendant of the potential loss of benefits.

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Criminal Practice – Evidence – Prior Bad Acts – Search & Seizure – Traffic Stop

U.S. v. McBride Police had a reasonable articulable suspicion to detain defendant’s truck after a traffic stop, based on an experienced officer’s observations of defendant’s contacts with others at the site of a club known for drug activity, but the trial court erred reversibly in admitting prior “bad act” evidence, the 4th Circuit says.

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