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Criminal Practice – Habitual Impaired Driving – Prior Convictions – Same Date
State v. Mayo (Lawyers Weekly No. 011-338-17, 8 pp.) (Hunter Murphy, J.) Appealed from Johnston County Superior Court (Tanya Wallace, J.) N.C. App. Holding: Two of defendant’s three prior driving while impaired convictions took place on the same day, though the offenses themselves occurred on different dates. G.S. § 20-138.5 of the Habitual Impaired Driving […]
Criminal Practice – DWI & Second-Degree Murder – Proximate Cause – Prior Convictions – Malice – Other Bad Acts
State v. Marslender An eyewitness testified that defendant’s truck passed her just as she was beginning to slow down because of heavy rain. She saw the truck go out of control due to, she thought, overcompensating. In addition to defendant’s 0.12 blood alcohol content, this was sufficient evidence that defendant’s impaired driving was the proximate cause of the accident that killed [...]
Criminal Practice – Sentencing – PSR ‘Facts’ – Prior Convictions — ACCA
U.S. v. BoykinA district court committed plain error when it used the presentence report’s discussion of the circumstances surrounding defendant’s two prior violent-felony convictions to apply an Armed Career Criminal Act enhancement under 18 U.S.C. § 924 when sentencing defendant as a felon in possession of a firearm; the 4th Circuit vacates the sentence and remands for a new senten[...]
Criminal Practice – ACCA – Prior Convictions – ‘Building’ B&Es
U.S. v. Foster A defendant’s prior convictions for breaking and entering a restaurant and a “Corner Market” under Virginia’s non-generic burglary statute qualify as violent felonies under the Armed Career Criminal Act, contrary to the district court decision, and the 4th Circuit vacates defendant’s sentence for possession of a firearm as a convicted felon and remands for resente[...]
Criminal Practice – Evidence – Prior Conviction – More Than 10 Years Old – Plain-Error Review
State v. Bortone. (Lawyers Weekly No. 11-16-0188, 16 pp.) (Martha A. Geer, J.) Appealed from Brunswick County Superior Court. (Ola M. Lewis, J.) N.C. App. Unpub. Click here for the full text of the opinion. Holding: Even though more than 10 years had elapsed since defendant’s conviction of felony forgery of deeds or wills when […]
Criminal Practice – DWI – Second-Degree Murder – Expert Evidence – BAC – Retrograde Extrapolation – Odor of Alcohol – New Trial – Prior Convictions
State v. Davis. (Lawyers Weekly No, 10-07-1097, 34 pp.) (Linda M. McGee, J.) Appealed from Gaston County Superior Court. (Richard D. Boner, J.) N.C. App. Click here for the full text of the opinions. Holding: Where the state’s expert based his estimate of defendant’s blood alcohol content at the time of the accident solely on […]
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