What's up in the 8th
As you might have guessed, I read a lot of cases for this blog. Reading cases is just like any other skill: the more you use it, the better you get at it. One of the things I've learned is to skim the opinion for the assignments of error. If they're manifest weight and insufficiency arguments, well, that's a case that's usually not getting read, primarily because (a) they're so fact-specific that there's no legal principles which are discernible, and (b) they're almost invariably losers.
Sometimes, I get the feeling that appellate courts treat them the same way. Lucky for Franco Stephens that the 8th District didn't share that feeling.
Stephens and his cousin, Nicholson, had walked up to a quartet of men playing dice in a yard, and asked to join the game. They were refused, and some hard feelings ensued, culminating with one of the men punching Stephens, breaking his jaw and knocking him out. Nicholson left, but shortly returned, and shot all four of the men, killing two. Depending upon the witness, Stephens was either still unconscious at this time, or just coming out of it. He and Nicholson then left, either together or separately. Nicholson had used a gun belonging to Stephens.
And that was all the evidence supporting Stephens' two convictions for murder, and his resulting 30-year-to-life sentence.
In State v. Stephens, the 8th District decides that's not enough. The State alleged that Stephens and Nicholson were planning to rob the men, based solely upon the latter's supposition of this. Even the trial court didn't buy that, and dismissed the robbery counts. That left the question of whether Stephens abetted Nicholson in the killings, his role hampered by the fact that he was unconscious during the entire time. As the court put it,
the only facts before the jury on the issue of whether Stephens aided and abetted Nicholson were: (1) they arrived at the scene together; (2) they may have left the scene together; and (3) the gun used by Nicholson was owned by Stephens.
Lacking any evidence of a plan to shoot, or of Stephens "inciting, advising, encouraging or assisting in the shooting," that left only the bromide about mere presence on the scene being insufficient to warrant conviction.
The common-place occurrence of a domestic violence victim recanting at trial is the feature of State v. Bell. The swollen eye depicted in the police photographs? Didn't happen. The hole in the hallway wall and the bent knife that she'd told the police Bell had used when he stabbed the wall and yelled, "I'll kill you"? That was just used by Bell to cut out damaged drywall in the living room.
On appeal, Bell claimed that the prosecutor's use of the 911 tape and the statements his fiancée made to the police was a violation of EvidR 607, which prohibits a party from impeaching its own witness except upon a showing of surprise and affirmative damage. One way around this is to have the court call the witness under Rule 614, but here that's not necessary: the statements were hearsay (excited utterances), and 607 specifically exempts them from the rule. So Bell's conviction is affirmed, and he has two years of community control to clean up his act. Given that this was his third felony conviction of domestic violence, the soon-to-be Mrs. Bell might want to give some second thoughts to the upcoming nuptials.
And the issue of Batson challenges should have been given a second thought by the court in State v. Williams. Although the court's factual recitation is sketchy, the case appears to represent a date rape situation: the victim testified that she woke to find Williams pulling down her pants, told him to stop, but was too drunk to resist further. The jury acquitted Williams of rape and kidnapping, but convicted himof gross sexual imposition. He argues that this was against the manifest weight of the evidence, but the claim is really one of the inconsistency of the verdicts: the acquittal of the rape but conviction of the gross sexual imposition meant that the jury "had concluded that the foreplay between the parties was not consensual but the intercourse was." <Your joke here>
The court goes into some exposition on the subject of inconsistent verdicts, and the short version is that this is an even worse argument than weight or sufficiency, because the defendant never wins. The US Supreme Court considered this a quarter century ago, explaining that juries may reach inconsistent verdicts because of mistake, compromise, or leniency. Since the defendant benefits from the latter two, at least, he has no room to complain about them.
Williams also raises a Batson challenge. I've got an argument in a case involving a Batson challenge in early January, and according to the research I've done, the 8th has never upheld one. The record remains intact. Batson involves a three-step procedure: the defense has to present a prima facie claim of discrimination, the prosecutor has to put forth a racially-neutral explanation, and the court then has to decide whether to buy it.
No problem here with the first two steps. The prosecutor struck the only black male on the jury, and Williams being black, this satisfied the prima facie requirement. The prosecutor argued that the juror had had a family member convicted of a felony, and didn't "seem to be paying attention."
A couple years ago I took a look at Snyder v. Louisiana, in which the Supreme Court ultimately reversed a death case because of Batson violations. (Post about oral argument here, summary here.) The upshot of Snyder was that trial courts had to make an independent determination of the prosecutor's reasons, rather than simply rubbert-stamp them.
I'm not sure the judge did that here. Although he found that the "State's reservations with respect to those two fact are certainly within the State's prerogative to dismiss that juror," he prefaced that by stating "this is the State’s first challenge. That hardly establishes a pattern." The appellate opinion repeats this.
And it's simply wrong: you don't have to have a pattern of discriminatory strikes. One will do. At least, that's the holding of State v. White and just about every court that's considered the issue. As Casey Stengel said, you can look it up.