Not with a bang but a whimper: after all the talk about the Supreme Court's using Briscoe v. Virginia to take another look at Melendez-Diaz v. Massachusetts, and possibly overrule it (see my posts here and here), last week the Court issues a per curiam decision vacating the Virginia Supreme Court's decision in Briscoe and remanding it back for reconsideration in light of Melendez-Diaz. And last week the Ohio Supreme Court writes finis to State v. Crager. After SCOTUS had vacated Crager and sent it back for review, the Ohio Supreme Court had initially done the same: reversed its decision and remanded the case back to the trial court for determination of whether Melendez-Diaz barred the substitute analyst's testimony. I questioned the decision, and the court, undoubtedly prompted by my criticism, decided instead to itself reconsider the case. Upon further reflection, the court apparently concluded I wasn't worth listening to -- a sentiment shared by countless others, including my wife -- reinstated its earlier decision, and sent the case back down.
SCOTUS is in recess until February 19. Its Ohio counterpart handed down a couple of decisions, one of which, State v. Williams, we discussed on Thursday, and we'll talk about again this Wednesday. Another was Graves v. Circleville, involving a case in which police allowed Cornelius Copley to retrieve his car from the police impound lot the day after he was arrested for drunk driving; the next day, while again driving drunk, Copley killed Jillian Graves. The police defended her estate's suit by claiming that they were entitled to a "public duty" exception that the Supreme Court had created back in 1988: that an employee can't be held liable for breach of a duty he owes the general public, rather than a specific individual. The court scraps the public duty rule, noting that it was adopted before the current sovereign immunity statute, and agreeing with the 4th District that the estate had presented sufficient evidence to survive summary judgment on its claim that the officers' conduct constituted "willful and wanton misconduct," exempting them from the protection of the statute.
So, onward to the courts of appeals, where the only cases of note are criminal...
6th District says that where defendant pleads to three offenses and is to receive mandatory 3-year period of post-release controls on one and discretionary 3-year periods on others, failure of court to advise defendant on each offense voids sentence for offenses he wasn't advised about, despite fact that PRC is to be served concurrently; other courts have ruled to the contrary, and that's probably the better result... 2nd District holds that officer had no right to frisk defendant after traffic stop, but conviction for charge of assaulting officer can stand, is not fruit of the poisonous tree... 8th District decides that use of electronic signatures on journal entries is permissible under local and state criminal rules... 5th District rejects Ice v. Oregon challenge to consecutive sentences, says squaring of Ice with State v. Foster up to state supreme court... Where defendant pled guilty to non-support, which alleges failure to pay support for 26 weeks out of 104, court can only order restitution for back support payments for the two years, says 12th District... 5th District affirms grant of motion to suppress based on stop for cracked windshield, says statute requires proof that crack obstructed vision...
Toughest Broad Award. Last year's went to the victim in State v. Evans, who was accosted by an erstwhile purse-grabber. When she wouldn't let go, he warned her that he had a gun. "Well, you know what?" she replied, "You're just going to have to use it." He ran off.
Just to show that living in Cleveland hardens the soul, this year's winner, the victim in State v. Sutton, also hales from the banks of the Cuyahoga. After attending a family barbecue and then imbibing some cognac on the porch in the company of the defendant Sutton and his cousin, the latter cited in the opinion only by his hopefully-not-eponymous nickname "Stank," she retired to bed. And then... oh, let's let the opinion take it from here:
N.J. awakened with “someone positioning theirselves upon me,” by which she meant he was having sex with her. She thought it was her boyfriend and told him to stop, but she quickly determined it was not her boyfriend when she felt his face. She grabbed the man by the neck, turned him over, grabbed the back of his shirt, and picked him up. She then walked him over where she could reach a light switch, turned it on, and saw that it was appellant.