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What's up in the 8th

While our stalwart governor has plundered educational and social programs in order to stave off a budgetary crisis, he's managed to keep correctional spending at a level sufficient to permit us to send Eric Robinson to prison for three years for possessing nine baggies containing six grams of marijuana.  Robinson's was one of the five drug cases, out of ten criminal cases decided by the 8th this past week.  The total amount of drugs involved in all five probably wouldn't have been enough to get the Brady Bunch high.

To be fair, Robinson's problem was not limited to the nine baggies of marijuana the police found in his van after it crashed; there was also the gun.  His conviction of the firearm specification hinged on the testimony of his passenger that Robinson had told him, right after the crash, "I hope the police don't find the gun,"  testimony which wasn't disclosed to Robinson's lawyer until the day of trial.  The passenger hadn't disclosed it to the police or the prosecutor prior to that time either, though, and, after permitting the defense to voir dire the passenger, the judge let the testimony in.  In State v. Robinson, the court agrees that this wasn't willful nondisclosure, and that exclusion wouldn't have been appropriate.  Robinson also raises the tomato soup defense (explained here), which might have had more resonance had Robinson not also pled to cocaine trafficking in a companion case.

A defendant's mouth also lands him in trouble in State v. FreemanFreeman is stopped for a traffic violation, the policeman asks if he has any guns on him or in the vehicle, and Freeman replies, "No, I don't.  Go ahead and check."  After searching the interior, the cop takes the keys out of the ignition, opens the trunk, and finds a gun.  Out of curiosity, I researched whether an argument could be made that by searching the trunk the officer exceeded the scope of the consent.  Good luck with that one.  There's a case out of the US Supreme Court a couple years ago rejecting the claim that a consent to search a car didn't include the search of closed containers, and even the 9th Circuit has rejected the "trunk" argument.  It might be otherwise, though, if the defendant objected to a search of the trunk when the officer attempted it.

One of the ways the judges here have chosen to deal with the inundation of low-level drug cases is to borrow from recreational fishing's concept of catch and release:  the defendant is sentenced to time served in jail, whatever that might have been, and is sent on his way.  State v. Eppinger might put a stop to that.  Eppinger cashed a bogus check at Wal-Mart, and the judge sentenced him to the 25 days he'd already spent in jail.  The court explains that a judge can either send a defendant to prison or impose post-release controls, but if the latter (and served jail time could be part of that sentence), the sentence must entail some period of supervision.  There's an out, though; Eppinger's judge would have been on safe ground if she had imposed a probationary period, and then terminated that along with the jail sentence.

The baffler this week comes in State v. Freeman.  Drugs were found in the roof lining of the car Freeman was driving, and an officer testified that BMV records indicated Freeman owned the car.  The opinion first says this is not hearsay, then that it's an exception to the hearsay rule, then that it's not hearsay because "statements offered to explain a police officer's conduct during an investigation do not constitute hearsay," before finally concluding that BMV records are "public records."  That may be, but even if they are, you still need someone from the BMV to come in and vouch for their accuracy.  Three years ago, in State v. Garrett (discussed here), the court held that a BMV printout itself wasn't sufficient evidence.  (Garrett is notable for dissenting Judge McMonagle's  trenchant observation, in arguing that the defendant should have known that the plates were stolen because she claimed to have bought them from "some crackhead," that "plates are purchased from the Bureau of Motor Vehicles -- not 'crackheads,'" a quotation that has yet to find its way onto the walls of the local license bureaus.)

The court makes up for its haphazard treatment of the hearsay rule in State v. Davis.  An entire venire had been exhausted in empaneling Davis' jury, leaving no alternates.  On the morning testimony was to begin, one juror informed the court she had been mugged the night before, and couldn't continue.  Although both parties consented to proceeding with 11 jurors, the trial decided the safer course was to dismiss the panel and start over.  The appellate court rejects Davis' double jeopardy argument, agreeing that the judge didn't abuse his discretion in following that course.  Davis' conviction still gets reversed, though, on an argument he made neither at trial nor on appeal.  Davis' wife was called as a witness by the State and testified, but no one bothered to ask whether she was willing to waive the marital privilege and do so.  This is plain error, and the court sua sponte raises it and reverses the conviction.

Finally, in the civil arena and in the category of "I never would have thought of that," we have Fitz v. Fitz.  Fitz had sought to extract himself from a seven-year alimony award by arguing that his ex-wife had taken up residence with another man, thus satisfying the entry's terms that alimony would cease upon wife's cohabitation.  The trial court rejected this on the grounds that doing so would violate Ohio's defense of marriage act, because

in order to terminate spousal support on the basis of cohabitation, the Court would have to find cohabitation tantamount to marriage.  Such a finding is now prohibited by the Constitution of the State of Ohio.

A novel argument, certainly, but the 8th decides that novelty is its only redeeming feature, and reverses.

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