What's Up in the 8th
After my jeremiad last week about forests being felled so that the 8th District judges can write opinions regurgitating in unneeded detail the law on manifest weight and insufficiency, four decisions on the subject this week, and in every one the law is summed up in a tidy paragraph. A firm believer in William Burroughs' observation that there are no coincidences, I submit that my bona fides as an environmentalist are established. I'm off to Washington to work on cap-and-trade climate legislation, my appearance no doubt a welcome relief to our beleaguered president, dismayed as he must be by news that the Olympic Committee took skier Lindsey Vonn's gold medal away and gave it to Obama on the theory that nobody's ever gone downhill faster than he has.
The manifest weight/sufficiency issue first crops up in State v. Gordon, which presents the question of whether sleep is a "substantial impairment" sufficient to establish a conviction of rape. As we tried to tell our friends in college, the answer is yes. The defendant argues that the victim's credibility was suspect because she didn't immediately report the incident, but his wasn't helped by the fact that he repeatedly denied anything had happened until DNA evidence proved otherwise. Up to the jury, says the court.
Ditto, says the court in State v. Ingram, which featured an after-Homecoming Dance celebration that made the toga party in Animal House seem like a celebration of High Mass; after reading the opinion's detailed narration of the events, which featured whole platoons of teen-agers alternatively passing out and vomiting, I almost did, too. The only legal point of interest was that the defendant had come over to the victim's boyfriend's house and threatened him for reporting the incident, the court holding this was admissible to show consciousness of guilt.
The defendant in State v. Williams made a strong run at a manifest weight argument: charged with 14 counts of rape, 16 of gross sexual imposition, and one for corrupting a minor with drugs -- all regarding his 10-year-old daughter -- he was acquitted of all but the last. He argued that since the jury didn't believe the girl about everything else, it shouldn't have believed her about the drug thing. The appellate court patiently explains that that's not how it works, the jury is free to believe whatever and whomever they want, and besides, you've had enough luck for one lifetime, so don't push it.
The most complicated case is State v. Hinzman, in which the defendant was one of several people charged with two counts of felonious assault for pummeling a fellow bar patron, one count under the subsection for inflicting serious physical harm, and the other for using a deadly weapon. The judge ruled that the "deadly weapon" in this case, a high-heeled shoe," didn't qualify as such, and dismissed that count of the indictment. The judge did charge on the lesser offense of aggravated assault; that section contains the same subsections, serious physical harm and deadly weapon, and the judge instructed the jury on both of them. The instructions and the verdict forms, however, allowed the jury to convict or acquit on only a single count of aggravated assault, without specifying a subsection.
The resulting conviction of aggravated assault was improper, Hinzman urged: a criminal jury has to unanimously agree on its verdict, and that means it had to unanimously agree that Hinzman had caused serious physical harm or that she'd used a deadly weapon. Since the verdict forms here allowed the possibility of less than a unanimous verdict -- some jurors could have found that Hinzman caused serious physical harm, others that she used a deadly weapon -- the conviction had to be reversed.
The appellate panel resorts to State v. Gardner, a 2008 Supreme Court decision, to figure this all out. Gardner involved a similar question: in a burglary prosecution, the State has to show that a defendant entered the premises with purpose to commit a criminal offense. Does that mean the jury has to unanimously agree which criminal offense the defendant intended to commit? Although the opinion in Gardner had numerous problems, which I detailed here when it came down, it was at least clear in holding that while a jury needs to unanimously find all the elements of a crime have been proven, it need not unanimously agree on the alternative means by which the crime could have been committed.
The opinion in Hinzman draws heavily from Gardner's extended discussion of "alternative means" versus "multiple acts," with a dash of "conceptual groupings" thrown in for good measure. The upshot is that the court decides that this is an "alternative means" case, meaning that "the jury was only required to unanimously agree that appellant's actions constituted aggravated assault," but that this still required there to be "substantial evidence to support a conviction under each subsection." Since the judge had dismissed the deadly weapon count of felonious assault, he'd never instructed the jury on the definition of a deadly weapon. According to the court, this meant that there wasn't "substantial evidence" to support an aggravated assault conviction under the deadly weapon subsection, and thus the conviction for aggravated assault ran afoul of Gardner.
If your eyes start to glaze over while reading the above paragraph, don't worry; I had to read the Hinzman opinion about three times, and Gardner twice, to understand it all, and I'm still not sure I do. In fact, one could argue that the trial judge's error in instructing the jury on both sections, when only one applied, rendered the verdict suspect, without getting into the Gardner analysis at all.
Finally, State v. Courtney presents an irregular feature here at The Briefcase, the Bullshit Traffic Stop of the Week™: The police stop a car for not putting on its turn signal before pulling into a gas station. As the officers approach, they see the occupants "shoving something in their pants"; hopefully, their respective pants, not each other's. The officers inquire what was hidden, and the passenger helpfully tells the cops it's marijuana. He's arrested, and Courtney, the driver, is removed from the vehicle "because of officer's concern for safety." As the officer leads Courtney to the back of car for frisk, a bag of heroin helpfully falls out. When the trial court believes what the officers say, there's not much the appellate court is going to do about it, so the denial of the motion to suppress is affirmed.