 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Randle12/21/2004
ou're considering the others, the difference between first degree rape and second degree rape is whether or not there was serious physical injury. Ladies and gentlemen, there's contradicting evidence to that."
Finally, we note that in the case at bar, the trial court asked defendant numerous times whether he consented to defense counsel admitting guilt to any offense, including lesser offenses. In response, defendant stated that he did not authorize counsel to admit guilt to any offense. The trial court then asked defendant whether he desired to move for a mistrial. After consulting with defense counsel, defendant stated that he did not desire a mistrial. Since we have concluded no Harbison violation occurred in this case, we do not reach the issue of whether defendant waived any Harbison violation by declining to accept the trial court's offer of a mistrial.
For the foregoing reasons, we find no ineffective assistance of counsel per se. Accordingly, this assignment of error is without merit.
II.
In his next assignment of error, defendant argues that the North Carolina short-form indictments for first degree rape and first degree sex offense violate both the United States and North Carolina Constitutions. We disagree.
Defendant contends that the North Carolina short-form indictments for first degree rape and first degree sex offense violate the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, §§ 19, 22 and 23 of the North Carolina Constitution because such indictments fail to include the first degree rape and sex offense element of "serious personal injury ." Defendant urges this Court to re-examine prior holdings and declare these short-form indictments unconstitutional in light of the United States Supreme Court decisions of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435 (2000) and Jones v. United States, 526 U.S. 227, 143 L.Ed. 2d 311 (1999).
Defendant was indicted for first degree rape and first degree sex offense under short-form indictments provided by N.C. Gen. Stat. §§ 15144.1 and 15-144.2 (2001). North Carolina courts have consistently held, post-Jones, that short-form indictments for first degree rape and first degree sex offense comport with the requirements of both the United States and North Carolina Constitutions. See State v. Shepherd, 156 N.C. App. 69, 72, 575 S.E.2d 776, 778 (2003); State v. Harris, 140 N.C. App. 208, 215-16, 535 S.E.2d 614, 619 (2000). Similarly, the Supreme Court of North Carolina has also reaffirmed the constitutionality of short-form indictments charging sex offenses postApprendi. See State v. Quinn, ___ N.C. App. ___, ____ S.E.2d ____ (No. COA03-1319 filed 2 November 2004) (discussing State v. Hunt, 357 N.C. 257, 270, 582 S.E.2d 593, 602, cert. denied, 539 U.S. 985, 156 L.Ed. 2d 702 (2003)).
In light of North Carolina case law consistently upholding the constitutionality of the short-form indictments for first degree rape and first degree sex offense post-Jones and post-Apprendi, we conclude that the North Carolina short-form indictments for first degree rape and sex offense are constitutional. Accordingly, defendant's assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Page 1 2 3 4 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|