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What's up in the 8th

There are competing theories among appellate lawyers, with one group arguing that you should assign every possible error, and the other that you should only argue those that you have a reasonable chance of winning.  There are pros and cons of each approach, and, as usual, the best answer is probably somewhere in the middle.  But Option A gets a real workout inthe 8th's decision last week in State v. Bruce, with decidedly negative results.

Bruce was convicted of raping his stepdaughters, which begat an appeal alleging no fewer than twenty-three errors.  The court makes short shrift of most of them, and understandably so:  no, you don't get a transcript of the first trial at state expense if you're not indigent.  No, there's nothing wrong with the police taping a conversation with your client as long as the other party to the conversation consents to it.   Bruce does come up a winner on the sexually violent predator specs, the court vacating them because the law at the time of his offense did not permit the underlying offense to serve as the basis for a specification, but that's the classic good news/bad news joke:  Bruce was sentenced to life without parole on the rapes anyway.

But the court also makes short shrift of two assigned errors which are more troublesome.  One was that the prosecutor played the recorded interviews of the two children during their direct examination.  The court notes that since the children testified, "the Confrontation Clause was not implicated."  That's certainly true, but there's still a hearsay problem:  playing a recorded interview during the witness' direct examination is no more permissible than having the witness read his statement to the police. 

The court also possibly flubs the issue regarding Bruce's wife, who testified not only to observations she made, but to conversations she had with Bruce.  The court finds the wife was a competent witness under Rule 601, but overlooks the fact that there's also a question of spousal privilege regarding the communications, and, unlike spousal competence, either party can invoke the privilege.  (I did a post discussing the difference between the two here.)

This isn't to say that emphasis on these two issues, and discarding about a dozen of the others, would have resulted in a different outcome.  But the court would have been hard-pressed to write these two off as harmless error, given that the first trial resulted in a hung jury.  What's more, it's possible that the good stuff got lost in the clutter:  the court devotes seven paragraphs in a 46-page opinion to those two assignments of error.

Then again, the State adopts the less is more approach in State v. Massengill, and it doesn't do them any good.  A police officer decides, for the most bogus reasons imaginable, that Massengill is worthy of further interrogation, and so approaches him as he's sitting in a barber's chair and begins to ask him questions; he fidgets under the barber's cape, and sure enough, he's got a gun.  The trial judge tossed the search, finding no basis for the stop, but on appeal the State argues, with some justification, that the officer's approach of Massengill in the barber shop was actually a consensual encounter, which didn't become a stop and frisk until the officer's "reasonable suspicions" had been aroused by Massengill's fidgeting.  No matter, says the court, the State didn't raise that argument in the trial court, so it can't do it on appeal.

From that point on, puzzlers abound, although the source of the puzzlement varies.  It's the State in State v. Ficklin, which indicted Ficklin on 2d degree felony burglary "and/or" 3rd degree felony burglary in the same count.  Ficklin moved to dismiss the indictment, saying that the conjunctive nature of the charges left unclear what degree of burglary the grand jury had found probable cause on:  some could have found it for the 2nd degree offense, others for the 3rd degree offense.  The use of "and" saves the indictment, says the court, although chiding the State and suggesting that that "the better practice" might be listing the charges in separate counts.  There's an idea.

The court provides some puzzlement in State v. McGinnis, in which McGinnis pled guilty to 3rd and 4th degree felony drug trafficking counts.  The trial judge informed him that the former carried a fine of $15,000, but neglected to advise him that $5,000 of that was mandatory, so the plea gets vacated.  But only the plea on that count; the plea to the latter stands.  I'm not sure this is right.  Although I can't find anything one way or the other, it seems to me that when a defendant agrees to a plea, it's a package deal:  he makes the decision to plead out based on all the information he's given, and if he's given the wrong information on one count, that affects the decision to plead out at all, not just to plead to that particular offense.

Finally, the defendant is the cause of downright bewilderment in State v. Novak.  Novak was indicted in 1996 in Case 1 for attempted murder, then reindicted on the same charges in Case 2.  Case 2 was subsequently dismissed, and Novak pled guilty to Case 1.  Novak now asks for expungement, claiming that Case 2 was never dismissed, so he was tried and sentenced twice for same offense, and the only way to remedy this double jeopardy violation is to expunge both cases. 

You can read that last sentence as many times as you want, and it’s still not going to make any sense.  I know; I tried.  And Novak had been convicted of other offenses; his lawyer conceded at the expungement hearing that Novak wasn’t a “first offender.”  And wait, there’s more!  Attempted murder is a crime of violence, so it can’t be expunged.  The only thing that could have made this whole effort any goofier is if Novak's lawyer had assigned twenty-three errors in the appeal.


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