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What's Up in the 8th

Twenty-four cases last week, and at least a partial reversal in one-third of them.

I've chided the 8th before for its mishandling of Crawford and hearsay, but all is forgiven:  in State v. Rufus, the court nails it.  Short version:  Husband and wife get into a fight, wife claims husband started it, policeman says he interviewed couple's 8-year-old child and child backs up mom's story.  The court reviews Crawford and its progeny, noting that whether the 8-year-old's statement is testimonial hinges on whether the police were responding to an emergency at that point, or whether the interrogation was instead intended to "prove past events potentially relevant to later criminal prosecution."  The court correctly concludes that it's the latter, and reverses. 

What's especially heartening is that the case was tried to the judge, and the court didn't blow off the error by saying that it presumed the judge considered only admissible evidence.  The court took the time to analyze what the judge had said in his verdict, and determined that the child's statement had played a major role in the verdict. 

The defendant is prosecuted for welfare fraud in 1993, enters the diversion program, is kicked out in 1999 for failure to make payments, the state doesn't get around to reinstating the charge until 2006, and it takes them another year before they bother to serve her with a capias.  A delay of that length violates the constitutional right to speedy trial, says the court in State v. Barnes.

In State v. Cooper, the defendant is charged with telephone harassment, which is "a misdemeanor of the first degree on a first offense and a felony of the fifth degree on each subsequent offense."  The state argues that because Cooper "repeatedly violated the statute over a period of months, that is sufficient for the felony telecommunications harassment conviction."  There's a whole bunch of cases saying that in such situations there has to be a prior conviction, not just a prior offense, so that's the end of that.

Our old friend allied offenses pops up in State v. MosleyMosley and his girlfriend get into an argument while she's ironing; he grabs and shakes her, she drops the iron and trips over it, the two fall to the ground.  He holds her down, despite her protests; "within seconds," the girlfriend's mother and son pull him off of her.  The court concludes that's enough to constitute both domestic violence and kidnapping.  The court notes that the two crimes are dissimilar -- each contains proof that the other does not -- but to its credit goes beyond that and moves to the issue of whether the legislature intended to impose separate penalties because of the disparate harms resulting from the crimes.  I'm not sure that holding a person down for a few seconds constitutes a sufficiently disparate harm to warrant penalties for both, but the opinion's thoughtful and well-written, and focuses on the correct issue, so on an appellate level, that probably counts for as much as a correct result.

And finally, a civil case.  In Asaodorian v. Demirjian, the trial court grants summary judgment in a breach of contract case, saying that the contract was oral and the 6-year statute had run.  The 15-year statute hadn't, though, and the 8th reverses, holding that even if there's no written contract as such, letters from the party who's alleged to have breached the contract can suffice if they include all the essential terms of the agreement.

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