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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

Still no decisions from the Supremes in DC, although that's supposed to change shortly:  they've promised to have some on Monday, and, if it's anything I find interesting, I'll have something on it here later this week.

Down in Columbus, the Supreme Court affirmed a death penalty in State v. PerezPerez had killed a man in a robbery, and critical to his conviction were tape-recorded conversations between him and his wife.  As I mentioned last week, there's a difference between spousal privilege and spousal competence; although the wife's willingness to testify solves the latter problem, either party can invoke the spousal privilege, which applies to any communications between them.  The court acknowledged in Perez that the privilege prevented the wife from testifying directly, but concluded that it should be "narrowly interpreted," and that the privilege didn't prevent the State from introducing the tapes. 

Also at issue was the State's introduction of evidence of five other robberies that Perez had committed, none of which resulted in a fatality.  Perez had argued that he didn't intend to kill anyone, and the State argued that this evidence was admissible to refute that, by showing that when the victims complied -- as the victim in the capital case had not -- Perez didn't shoot them.  The judge gave a curative instruction to take that into consideration only in establishing intent, not the likelihood of Perez's having committed the crime for which he was on trial, and I'm pretty sure the jury did. 

In a similarly jaundiced vein, on to the courts of appeals, where the holiday produced slim pickings, except in the 6th District, where apparently the judges skipped getting in line at Walmart at 3:30 in the morning and wrote opinions instead...

Criminal.  Defendant's disability is aggravated riot, judge misreads instruction and tells jury it's aggravated robbery; not prejudicial, says 6th District, since written jury instructions contained correct offense... Also says that counsel has no duty to discuss entrapment defense prior to plea, failure to do so isn't grounds for vacating post-sentence plea... And reverses an unruly finding, holding that juvenile's junior high records of disciplinary problems weren't admissible on Crawford grounds... No double jeopardy problem in State filing non-support charges after defendant spent 30 days in jail on contempt charge for not paying child support, says 8th District; contempt for failing to pay support is civil, not criminal...

Civil.  6th District says that it's a violation of due process for a civil litigant to have a biased judge, but only remedy is through disqualification procedure under RC 2701.03; statute requires filing motion to disqualify seven days before trial, what happens if you don't find out judge is biased until trial begins?... Also holds that Florida home seller's interactive web site which resulted in contract with Ohio buyer did not create personal jurisdiction in Ohio over seller... Denial of preliminary injunction is not a final appealable order, says 1st District... 3rd District agrees with other appellate courts which have held that trial court must conduct hearing on a motion to confirm an arbitration award...

"Victim"???  In State v. Collins, the trial court had ordered the deffendant to pay restitution of $5,855 to the Norwalk Police Department "for its expenses in using a confidential informant and making the [controlled] buys [of drugs]."  The 6th District decided that "such expenses do not render the police department a 'victim' to which restitution is authorized."


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