Tuesday, July 03, 2007, 7:56 PM

Here's Something You Don't See Very Often ...

Today, in a criminal case, the COA ruled in favor of the criminal defendant in a split decision. Ok, that's not unusual. What is unusual is the lineup: Judges Calabria and Tyson in the majority ruling for the defendant; Judge Wynn dissenting.

The case has somewhat of a Nifongian feel to it. Defendant killed someone while driving recklessly on a highway. For that act, he was charged with second-degree murder. On the Wednesday before a Monday trial, the State notified defense counsel that it intended to call an expert to testify. Two days later (the Friday before the Monday trial) the State provided the expert's report, which was dated a month earlier. It was a report for "Retrograde Extrapolation of Alcohol Concentration." Basically, the expert took the blood alcohol levels from two hospital tests of defendant's blood after the accident (one at 1:38 a.m., the other at 3:00 a.m.), measured the difference, and then extrapolated backward to figure out his blood alcohol level at the time of the accident earlier in the evening.

Defendant moved to continue the trial since he had received the expert report so late. The trial court denied the motion, the trial proceeded, and defendant was convicted. He appealed the denial of his motion for continuance, contending his due process rights were violated.

The COA majority was concerned that the State may not have satisfied its statutory and constitutional duties to disclose all the information in its possession, including the fact that the second blood test was drawn at the hospital (the one at 3:00 a.m.) and the fact that the expert would testify. The majority thus remanded the case for a hearing with instructions for the trial court to make findings on eight specific issues dealing with the State's disclosure of information and defendant's knowledge of that information.

One wonders if the majority was sending an additional message to the State's prosecutors and trial courts in light of the Nifong disaster.


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