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What's Up in the 8th

This week's "We Know What You Meant, But You Could Have Said It Better" Award goes to the trial judge in State v. Hawkins.  Hawkins was facing life without parole for several aggravated murders, and in explaining why a plea deal might be beneficial, the judge told him,  "If you're convicted of all these crimes, Mr. Hawkins, you are going to die in prison, and so is everybody else in your family."

Hawkins presented a common issue:  on the day of trial, Hawkins announced he wanted new lawyers because he didn't feel they "are going to fight for me to the fullest extent."  On appeal, he argued this required the trial court to fully investigate the reasons for his discontent, but the court relied on the substantial case law which holds his complaint wasn't suffiicently specific; "vague or general objections do not trigger the duty to investigate further."

As usual, several cases where pleas and sentencings were screwed up.  In State v. White, the imposition of post-release controls consists of nothing more than the admonition that "you'll be placed on three-years of post-release control, which if you violate even by jaywalking, it will result in you doing more prison time," so that comes back.  In State v. Tokar, the judge forgets to tell the defendant what the penalties are for the crimes he's pleading to, so that comes back, too.

The defendant in State v. Griffin complains of post-release controls, too, and seems to have a good argument.  His plea had been vacated -- two weeks after he'd finished serving his sentence -- because the judge hadn't told him of PRC.  On remand, he entered the same plea, and this time the judge properly imposes PRC.  Griffin argues now that the judge can't do that because, under State v. Bezak (discussed here), PRC can't be imposed during resentencing if the defendant has already completely his sentence. 

But, as the 8th correctly notes, that's where the sentence is vacated.  Here, the plea was vacated, restoring the situation to the status quo ante.   When the defendant entered his plea the second time, the court was free to impose PRC. 

Another well-reasoned case is State v. Edwards, where the defendant was found in an apartment during a drug search, along with a fair amount of drugs, scales, baggies, and so forth.  He argued that they belonged to the tenant, but the court said that his conviction for possession could stand because he was in close enough proximity to the drugs that he could be said to have constructively possessed them.  But the court notes that constructive possession is not sufficient to prove trafficking or possession of criminal tools:  there was no evidence that Edwards had anything to do with bagging the drugs or weighing them, and his guilt of that couldn't be inferred from his mere presence.

In State v. Johnson, the defendant was charged with multiple counts of rape and kidnapping, plus one for having a weapon under disability.  He offered to stipulate to the prior convictions on the disability, but the State refused, and the decision concludes that, since the prior convictions were elements of the crime, the judge was right in allowing the jury to hear about them.  The whole problem could have been avoided if the defense had asked to bifurcate the disability count and have that heard by the judge; why that wasn't done isn't mentioned.   Judge Rocco's dissenting opinion contains an excellent summary of how this prejudiced Johnson: one of the prior convictions was for rape, and in rebuttal the State called the victim of that crime, who testified about the details of it; the State argued in closing the similarity in how the two crimes were committed. 

The puzzler of the week is State v. Jay.  Jay advised the police that while changing his 3-year-old son's diaper, Jay tickled the boy's testicles, which resulted in the child getting an erection, which Jay stroked several times.  Jay also helpfully tells the police that he "may have used saliva on the boy's penis"; the officer's observation that Jay was "probably intoxicated" comes as little surprise.  Jay's claim that he was "just joking around" and that the whole thing was "no big deal" is ultimately disproved by his conviction of gross sexual imposition. 

Jay's argument on appeal was simple:  the statute requires that the sexual contact be "for the purpose of sexually arousing or gratifying either person," and the judge had failed to instruct the jury on purpose.  The court, relying primarily on its decision earlier this year in State v. Dunlap, concludes that GSI with a minor under 13 is a strict liability offense, and no mens rea is required:  all that is necessary is proof that the proscribed sexual contact occurred.

This represents a complete misreading of Dunlap, which involved the mens rea with regard to the "under 13" element.  Dunlap argued that the State should be required to show that he was at least reckless with regard to knowing the child's age.  The court rejected that argument, as it has in the rape statutes.  One can mistake a 15-year-old for an 16-year-old, which is why the sexual misconduct statutes require recklessness as to age.  One can't reasonably mistake a 12-year-old for a 16-year-old, though, so the imposition of strict liability as to age makes sense.  But it's real hard to argue that the sexual contact element is strict liability, especially when the statute specifically says, "for the purpose of.

Finally, in State v. Whitsette the court engages in its weekly Search & Seizure Smackdown, reminding the Cleveland Police once again that an anonymous tip does not furnish the basis for a stop unless the police can corroborate the incriminatory details of the tip:   If someone calls and says that two men in a blue Pontiac are selling dope on E. 117th St., and you go to E. 117th and see two men in a blue Pontiac, you can't stop them unless you see them doing something consistent with selling dope.  Interestingly, the passenger ran from the car when he saw the police, but the court holds this doesn't create a basis for a pat-down of the driver.  The passenger's actions would have led to a different result in at least half the districts in this State.

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