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8th District roundup

I know, usually I do the 8th District stuff on Tuesdays.  But I'm going on vacation for a week tomorrow, and there's a ton of stuff I've got to do today.  I do a weekly post for the listserves of the OACDL and the CCDLA on the 8th District criminal cases, so I'm just going to give you the same thing, and toss in some notable civil cases, too.  The Briefcase will be closed next week, and I'll be back the following week with the usual stuff, plus my wildly-anticipated review of the just-concluded US Supreme Court term.  Anyway, let's get to it:

Criminal cases.

State v. Benford - A judge will not be found to have abused of discretion in denying a continuance where defendant shows up the day of trial and asks for a new attorney, especially where (a) the only reason offered for wanting a new attorney is because the defendant feels he'd have a better chance with "someone recommended by relatives," and (b) the court calls the office of the new attorney the defendant has supposedly retained, and they tell the court they've never heard of him.  Meanwhile, the next day defendant did appear with a newly retained attorney, who got a year knocked off the agreed sentence:  the defendant wound up doing three years on a case where he'd originally been indicted with a major drug offender specification.  I know what everybody, including me, says about Anders briefs, but if ever there was a case for one, this was it. 

State v. A.H. - Here's the situation.  You're a trial judge, and a defendant files a motion to seal an arrest record.  The statute says that when the motion is filed, "the court shall set a date for hearing..."  Should you (a) set a hearing date, or (b) deny the motion without a hearing?  I mean, no disrespect to our robed colleagues, but how hard is this?   

In re J.S. - Here's another thing you can't do:  allow the State's witnesses to testify that they identified a juvenile as the perp in a robbery based on seeing him in a videotape, when the State has failed to produce the videotape in response to discovery requests, and doesn't even introduce it at trial.  Yep, a bunch of people sit on the witness chair and say, "I recognized the defendant on the videotape."  What videotape?  Oh, right, the one we didn't give to the defense or show to the court.  I mean, no disrespect to our more law-enforcement oriented colleagues, but don't they cover this sort of thing in Prosecutor School?   

State v. Gove - Cops see car parked in odd location at gas station, pull up, get out, see three people in car, one of whom is shooting heroin.  Court upholds search, finds that observations gave police reasonable cause to believe criminal activity was afoot.  Opinion notes that although police pulled up in front of defendant's car, bumper to bumper, and got out with guns drawn, nobody in car ever noticed police until they knocked on window.  I mean, no disrespect to drug addicts, but don't you have to be a little more observant that that? 

State v. Thomas - Bullshit Traffic Stop of the Week:  Police observe defendant make left turn without putting on turn signal.  By the time they catch up to car, car is parked, and defendant and two passengers have exited.  Cops approach defendant driver, find he has suspended license, arrest him, then search car.  Excellent, and lengthy, discussion in both majority opinion and dissent of effect of Arizona v. Gant (my discussion here)Majority finds that search illegal under Gant because defendant was secured and had no access to vehicle, and there was no reason to believe that vehicle contained evidence of crime.  Dissent notes correctly, as I mentioned before, that there's a big loophole in Gant:  police can seize car and search it under inventory search exception.  But majority notes that there was no evidence that car was parked illegally, so inventory search not permissible.  If you've got a case involving a vehicle search which falls under Gant, this is the opinion to have, especially in the 8th District. 

State v. Conley - Another reversal of a denial of a motion to suppress, and further evidence of my contention that the 8th District is the most 4th-Amendment-friendly court in the state, if not the country.  Police observe two people, one of whom (not the defendant) they know has warrant.  They tell people to show their hands, approach, observe defendant put his hands into his pockets a number of times.  Cop reaches into defendant's pocket, finds crack pipe.  Court says that defendant's putting hands in his pocket may have given rise to reasonable suspicion that he was engaged in criminal activity, but didn't warrant cop reaching into his pocket. 

State v. Pustelnik - Well, not that friendly.  Court upholds search warrant which was based on informant's tip, even though informant had no record of reliability, where he claimed that defendant was selling drugs from his house, police had observed heavy pedestrian traffic in and out of the house, and did a trash pull which found marijuana. 

Civil Cases.

Bohannon v. Pipino - After time for dispositive motions has run, defendant files motion for leave to file summary judgment, and motion for summary judgment.  Plaintiff files motion opposing leave.  Court grants leave and, on same day, grants defendant's (unopposed) summary judgment motion.  You can't do that, either; court says that trial judge should have granted plaintiff's motion to vacate award of summary judgment.

Broadvox v. Oreste - Fifty ways to lose a lawsuit:  Record shows defendant served at home and business address, certified mail receipts signed by "other."  Defendant files motion to vacate, claims in affidavit he never got the complaint, states that this rebuts presumption of service, makes judgment void.  No, it doesn't, says court; he never claimed it was wrong address or that competent adult didn't sign for it.  There's a difference between service and actual notice.  Lack of service is a jurisdictional defect, and voids the judgment; lack of actual notice just goes to question of whether relief should be granted under 60(B).  In this case, motion to vacate was untimely, so you're out of luck, Buck.

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