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What's Up in the 8th

The court spent the week, for the most part, tying up some loose ends, at least in the criminal area.

Two cases, State v. Hayden and State v. Briscoe, involved Colon questions.  You'll remember that back in May, the Supreme Court held in Colon I that an indictment for aggravated robbery for causing serious physical harm which failed to specify a mens rea element of "recklessly" was "structural error" mandating reversal.  (Read all about it here.)  Then on reconsideration, in Colon II the court substantially limited its earlier decision.  (My post here.) 

In Briscoe, there's some good news:  Briscoe was charged with aggravated robbery causing serious physical harm, the indictment didn't contain an intent element, the facts were virtually identical to Colon (no jury instruction re intent, everyone assumed there was no requirement), so the court vacates Briscoe's conviction for that.  The bad news for him is that his conviction for aggravated robbery with a gun is upheld, the court continuing to hold that such an offense is "strict liability" (i.e., there's no intent requirement regarding the gun), and the judge had run those two sentences concurrent.  Even worse is that the judge had run them consecutive to his conviction for murder and a gun spec, so Briscoe gets to spend the next 28 years explaining to his fellow inmates what "Pyrrhic victory" means.   

In Hayden, the court doesn't even reach the Colon issue, noting that the defendant had pled guilty, and that such a plea waives any error in the indictment or anything occurring before the plea. 

A couple of sentencing decisions, where the court upholds maximum (though not consecutive) and consecutive (thought not maximum) sentences in State v. Hicks and State v. Ruiz, respectively.  Nothing groundbreaking in terms of legal analysis, and not much really to complain about.  Hicks had worked as a home health care aide for a couple in their mid-80's, and had used the position to steal $54,000 from them in only 8 months.  Ruiz had been distraught at his girlfriend's breaking up with him, so he went over to her house, broke in, and raped her.  He was 17 at the time, so the juvenile court released him to his parents.  He promptly tracked down the girlfriend and blew off half her face with a shotgun.  Try as I might, I don't find the thought that he's going to spend the next 27 years behind bars distressing.

The odd thing about Ruiz is that the defense raised the issue of the retroactive application of State v. Foster (post here) and argued that Ruiz was entitled to the pre-Foster presumption of minimum concurrent sentences.  The court spends four pages discussing this, then correctly notes that it doesn't matter anyhow because Ruiz committed his crimes after Foster came down.

Some nibbles and bits... The court unremarkably concludes in State v. Simmons that a defendant can't be required to pay court costs if the case against him is dismissed because the evidence is thrown out.  It also says in Hayden that an attorney's failure to ask that court costs be waived isn't ineffective assistance of counsel, limiting a previous contrary decision to the facts of that case.  In State v. Fryer it affirms one denial of a motion to suppress (lesson:  don't smoke dope in the car when there's a cop across the street) and State v. Priester it affirms the grant of one (lesson:  in high drug/prostitute area, watching someone stop car, talk to "ladies" on sidewalk, then invite them into car does not constitute reasonable suspicion for stop). 

Schrader v. Cleveland is a fairly significant civil case.  Schrader fell into an excavation hole near a bus stop, but her personal injury suit agaisnt the city, the regional transit authority, and the construction companies got tossed on summary judgment, on the basis that the condition was open and obvious.  The 8th reverses the grant of summary judgment to the contractors, on the ground that only the owner of property can claim the benefits of the open and obvious doctrine.  As for the transit authority, the court holds that even if they were the owners of the property, "attendant circumstances" take the case out of open and obvious.  It seems an overly expansive reading of what constitutes attendant circumstances, but as I've noted before, that concept seems no more problematic than the open and obvious doctrine itself, so it all comes out in the wash.

Last, a cautionary note to those contemplating home additions:  the Opincars had contracted with F.J. Spanulo Construction to build an addition to their garage.  After the addition was finished, the gas company told the Opincars that it had been built over a gas line, and that it needed to be removed.  The Opincars did so, then sued Spanulo, claiming that the company had been negligent in failing to check with the gas company before doing the work.  The 8th District affirms the grant of summary judgment to Spanulo, saying that's the homeowner's job.

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