North Carolina Court of Appeals to hold oral arguments at WFU School of Law
October 26, 2009
The arguments will be heard beginning at 3 p.m. in Room 1312 of the Worrell Professional Center. The court will hear two criminal cases, State v. Veazey and State v. Simonovich. The first involves a traffic checkpoint. The second involves a husband’s second-degree murder of his wife.
At the close of the session, the judges will invite the audience to ask questions concerning appellate practice. Following the close of the session, a reception will be held for the judges and members of the law school community.
Following is a brief description of each case:
State v. Veazey
This appeal concerns the constitutionality of a traffic checkpoint and the admissibility of evidence obtained from the checkpoint. In 2006, a state trooper set up a traffic checkpoint outside of Walnut Cove, N.C, and the defendant (Veazey) was stopped. After Veazey produced his license, the trooper detected an odor of alcohol and asked Veazey to pull over. The trooper then arrested him for driving while impaired. Veazey filed a motion to suppress evidence from the checkpoint under the 4th and 14th amendments. The trial court denied the motion, Veazey appealed, and the Court of Appeals remanded for further findings of fact regarding the purpose and reasonableness of the checkpoint. Veazey appealed the trial court’s subsequent denial of the motion to suppress.
Veazey argues that the trial court’s findings of fact are not supported by competent evidence. He also argues that the checkpoint was unconstitutional, as it did not have a permissible programmatic purpose of checking for licensed drivers and it was unreasonable based on a three-factor test: 1) the gravity of the public concerns, 2) the degree to which the seizure advances the public interest, and 3) the severity of the intrusion on the individual. Additionally, Veazey argues that the state trooper was given too much discretion in conducting the checkpoint. The government contends that the primary purpose to ensure that drivers were licensed and obeying the motor vehicle laws was valid and that the checkpoint was reasonable under the three-factor test.
State v. Simonovich
Dimitry Simonovich and his wife, Inna, were married in their native country of Belarus before immigrating to the United States, where they settled in Asheville, N.C. The Simonovichs had a rocky relationship, mostly due to Inna’s alleged infidelity. On the night of July 28, 2007, after Inna told Dimitry she was leaving him for another man, Dimitry strangled her to death. A jury found Dimitry guilty of second-degree murder.
The defendant raises three issues on appeal. First, he contends that the trial court erred in not granting the defendant’s request to instruct the jury on voluntary manslaughter by reason of provocation. The defendant concedes that the doctrine of provocation generally applies only when one spouse actually catches the other in the act of adultery, but the defendant requests that the court extend the existing case law to consider the evidence of on-going adulterous behavior of a spouse.
Second, the defendant contends that the trial court erred in instructing the jury on aggravating factors. At the sentencing phase of the trial, the judge asked the jury to decide whether the defendant knew at the time of the offense that the victim was pregnant. At that time, the defendant requested that the judge provide the jury with a definition of an aggravating factor, which the judge declined to do.
Finally, the defendant contends that the trial court erred in not finding as a mitigating factor that the defendant acted under strong provocation, or that the relationship between the defendant and the deceased was otherwise extenuating. The defendant argues that the victim’s alleged infidelity and statement that she was going to leave the defendant amount to a mitigating factor that should have affected the defendant’s sentence.
