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What's Up in the 8th

In the last three weeks before this past one, the 8th handed down only thirteen decisions.  They make up for that with a vengeance by doubling their output last week.  Fifteen criminal decisions find their way onto that list, but defendants get no love, managing merely to eke out a remand for resentencing in a case or two.

As usual, some of the rulings are instructive.  Two deal with violations of community control sanctions.  State v. Lenard teaches that the allegation of violation need not be in writing, and that the finding of violation is reviewed for abuse of discretion.  The law requires a judge at sentencing to inform a defendant of the sentence which will be imposed in the event of a violation, and that's what the judge did in State v. Hodge; he imposed the prison sentence after the second violation, and the court holds he didn't have to reinform Hodge of the prison penalty at the first violation hearing.  The failure to comply statute (what used to be fleeing and eluding) requires that any prison sentence for that be imposed consecutively to any other sentence; in State v. Spicer, the court holds that applies even if the other sentence is in a different case. 

State v. Robideaux is the relatively rare affirmance of the State's position in a search case.  The cops had been told of a drug house, and that Robideaux was believed to be delivering drugs there on a regular basis.  On one occasion, he got into an accident there, and the police were called, including the detective who'd been monitoring the situation.  Just before arriving, the detective was told by a confidential source that Robideaux was seen shuffling items around in the back seat, as if to hide them.

When the police arrived, Robideaux gave evasive and unsatisfactory answers to various questions.  The detective asked Robideaux for consent to search the car, but he declined, whereupon the detective simply opened the rear door and grabbed the drugs that Robideaux had hidden there.  The case mainly serves to show how fact- and judge-specific 4th Amendment law is; there's probably several score of permutations of panels of the district's twelve judges who would've tossed this search in a heartbeat.

Appellate counsel in State v. Mikolajczyk makes an interesting argument.  The defendant (you think I'm going to write that name again after writing "Robideaux" half a dozen times?) was charged with drunk driving with five priors.  On the municipal court records for one of them, the box on whether the defendant had been advised of his rights wasn't checked.  The defendant's lawyers argued that this meant the guilty plea hadn't been knowingly, voluntarily, and intelligently made, and thus couldn't be used as a prior.

It's an interesting twist:  the courts have held that a conviction in which the defendant didn't validly waive counsel can't be used as an enhancement.  But the court won't go beyond that:  only "a conviction obtained without the assistance of counsel, or its corollary, an invalid waiver of right to counsel" can be attacked collaterally to preclude its use as an enhancement.

The defendant in State v. Williams was charged with rape and kidnapping of his nephew when the boy was 7, in 1992.  In 2004, another nephew told his mother that Williams had raped him when he was 12 and 15, in 1989 and 1992; when confronted by the family, Williams admitted it.  Armed with that letter, the first nephew went to the police, and Williams was indicted.  At the trial, evidence of the letter and the second nephew's allegations was admitted;  although that nephew didn't testify, Williams acknowledged he'd molested the boy.  Williams was convicted and sentenced to life in prison.

The evidence about the other nephew was admitted under the evidence rule which allows proof of "other acts" to show "motive, intent, opportunity, preparation, plan, or knowledge."  In this case, says the court, it went to prove Williams' "modus operandi" of molesting his nephews.  The spirited dissent makes a good contrary argument, pointing out something the majority ignores:  the rape shield statute, which prohibits evidence of prior sexual activity of the defendant as well as the victim, is implicated.  What's more, that statute requires the judge to evaluate whether the prejudicial nature of the evidence outweighs its probative value.

And this is the key problem.  The modus operandi exception should be reserved for those situations where there are strong similarities between the two events.  An attorney in my office has a case where the defendant and two other men walked into a GameStop, tied up the employees with duct tape, and robbed the store.  The State wants to use that as evidence in another case where the defendant is charged with going into a GameStop with two other men, tying up the employees with duct tape, and robbing the store.  Good luck, I told him.  Here, though, there's nothing more than that Williams molested a nephew before and is accused of molesting a different nephew now. 

One last point.  The majority finds solace in the fact that the jury was properly instructed on how to use this evidence:  not to to "prove the character of the defendant in order to show that he acted in conformity with that character," but "only only for the purpose of deciding whether it proves the defendant's motive, opportunity, intent or purpose, preparation or plan, to commit the offenses that have been charged in this trial." 

What does that even mean?  Who is capable of thinking like that?  How does one say, "I will not consider this evidence in deciding whether the defendant is the kind of person who would do something like this, but I will consider it in deciding whether he did it"?

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