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Plain view and plain error

Couple of recent cases from the 8th District I wanted to talk about. 

The first is pretty straightforward.  A policeman, while standing at an apartment door on another matter, sees drugs in plain view inside.  Can he enter the apartment without a warrant and seize the drugs?

The 8th District said no last week in State v. WestThe cops had responded to a domestic violence call in an apartment building, and had seen an electric cord coming out of another apartment and plugged into a wall socket in the hallway.  (Apparently, this is a common way of obtaining the services of Ready Kilowatt without having to pay for them.)  They knocked on the door, and according to the police, a number of events then transpired, some of which may have actually happened, and others not so much.  (The officer who was standing at the door testified that although he couldn't observe the bag of crack sitting on top of the TV set, somehow the cop behind him could.)

At any rate, the bag was spotted, the police went into the apartment and grabbed it, and the trial court tossed it.  The appellate court agreed that merely spotting the drugs in "plain view" wasn't sufficient; the police had to have a justification for entering the apartment beyond just seeing the drugs in there.  The state argued the "exigent circumstances" exception, which allows a warrantless search where the police have a reasonable belief that the destruction of evidence is imminent.  The court wasn't buying, though, holding that there was no indication the occupants knew that the officers were aware of the drugs.

Judges Blackmon and Rocco were in the majority; Judge Corrigan dissented.  You have a different panel, and you probably wind up with a different result, which is true of most 4th Amendment decisions.

The other case, State v. Grimes, is a little more puzzling.  The case involved a charge of patient abuse -- an alleged assault on a nursing home patient by one of the staff -- and the defendant had requested a charge on attempted patient abuse.  The trial court refused, and the court of appeals agreed, but here's the puzzling part:

The record indicates that although defendant requested an instruction on a lesser included offense, he did not object to the trial court's failure to give an instruction on a lesser included offense....The failure to object to a jury instruction constitutes a waiver and any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise.

I'm not sure what that means, because the court proceeds to analyze the question without ever again mentioning the plain error doctrine.  If the court meant to suggest that under Rule 30, a defendant not only has to submit an instruction, but in order to preserve a claim of error has to object when the court fails to give it, that seems to run contrary to a number of Supreme Court decisions, such as State v. Wolons, 44 OSt3d 64, back in 1989.  In fact, Wolons was an appeal out of this district.  The defendant had requested an instruction on intoxication, but didn't object when the judge didn't give it.  The court of appeals reversed on a plain error theory, and the Supreme Court reversed that, but held that the defendant did preserve the error by submitting the instruction and the law.

It's hard to quibble with that analysis.  The purpose of requiring an objection is to allow the court to correct a potential error.  When you've gone to the trouble of submitting a written jury instruction and the judge refuses to give it, it seems that you've done what's necessary to preserve the error; requiring a further objection seems to be the classic exaltation of form over substance.

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