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What's up in the 8th

A few months back, I ran into one of the Cuyahoga County court of appeals judges, who told me that they'd almost cited my blog in one of their recent opinions; apparently, they'd sobered up just in time.  It seems the liquor was flowing more frequently down at the old Lakeside Courthouse last week, because as I'm reading the 8th's opinion in State v. Minifee, I come across this line:

As for the state of the law on allied offenses, we could not agree more with how one commentator described it, namely, that "one would be hardpressed to find an area of Ohio law that is more confused than this one."

When I checked the footnote, sure enough, the commentator turned out to be me.

I must confess, though, I'd hoped that my debut in that role would feature something more insightful than that Ohio's allied offense law is a mess, an observation that's apparent to anyone who didn't flatline their last EEG.  Still, perhaps spurred by the simplicity of my comment, if not its profundity, the court does a good job of wading through the wreckage, concluding that two counts of felonious assault -- one for use of a deadly weapon, and the other for causing serious physical harm -- merge, and the resultant charge then merges with felony murder.

A simple result is also in the offing in State v. Holly, in which the police followed and stopped a truck they'd seen leave a drug house.  They frankly acknowledged that the only reason they'd stopped the truck was to determine the identity of the driver.  In affirming the grant of the motion to suppress, the panel notes that "in America, the police may not stop an individual for the sole purpose of compelling him to identify himself," at least not yet.  Frankly, the State's decision to appeal this is puzzling.  It tried to argue that their observations gave the police reasonable suspicion that drug activity was taking place at the house, but if the cops aren't willing to go to bat for that argument, it's not going anywhere.

The result in State v. Johnson is simple, but it could lead to some interesting developments.  Six months ago in State v. Clay (discussed here) the Supreme Court held that where a person is charged with having a weapon under disability, and the disability arises from a pending indictment, the indictment has to allege a "reckless" mens rea, i.e., that the defendant was reckless in knowing whether he was under indictment.  (Yeah, I know, it sounds goofy, but I didn't come up with it.)  In Johnson, the disability arose from prior convictions, but the defense upped the ante:  it argued that Johnson had to be "reckless" with regard to knowing that those convictions prohibited him from possessing a gun.

The court bought it, which opens up some interesting possibilities.  Up to this point, a prosecutor in a weapons disability case had to prove only that (a) the defendant had a gun, and (b) he'd been convicted of an offense which barred him from having one.  Under Johnson, the State now has to prove (c) that the defendant "acted recklessly with regard to being aware that he had been convicted of an offense that prohibited him from having a weapon."  Sure, you're not going to be able to sell a jury on the idea that your client didn't understand that his three prior aggravated robberies made him ineligible to carry a gun, especially the one he used in the fourth robbery that he's on trial for now.  Still, the ruling requires the State to prove more than it had to prove before, and that's a good thing for defendants.  Snaps to the Cuyahoga PD's office for pulling this one off (and especially to Cullen Sweeney, who argued this one, and also won Clay and Colon).  But I have a feeling this isn't going to get by the Columbus Seven.

Finally, those looking upon jury service as an opportunity to catch some winks are going to be disheartened by the court's decision in State v. Majid, in which the court overturns Majid's murder conviction because one of the jurors spent a substantial portion of the trial asleep.  And I mean asleep.   The guy did everything except bring a pillow and blanket; the opinion includes these quotes from the trial transcript:

[PROSECUTOR]:  I was about to inform the court that. . . Juror number one was soundly asleep, had his mouth agape, eyes closed...

And later on...

[THE COURT]:  Let the record reflect that Mr. Brown is asleep again with his mouth agape, snoring as well.

The appellate court, over the dissenting judge's argument that the defense waived the objection, held that a defendant has a due process right to a jury which is paying attention to the proceedings.  The tipping point for the court's decision was probably the comment of the trial judge, also included in the record, the last time she was alerted to the problem: 

[THE PROSECUTOR]:  -- Miss Sowul brings to my attention Mr. Brown is sleeping again.

[THE COURT]:  I saw it.  So what.  Let him sleep.  You guys picked this jury, I didn't.

You can't make this stuff up.


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