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What's Up in the 8th

After reading this week's bevy of 8th District cases, I'm rethinking my approach to appellate practice.  Maybe I should set a goal in each appeal of having assignments of error at least reach the double digit level.  Maybe I should push the envelope in the arguments I make.  Then again, that didn't prove terribly effective for the lawyers who tried it.

Exhibit "A" is Westlake v. Nidan, a domestic violence case stemming from a call police received that an "Arabic woman on the second floor [was] screaming for someone to call the police because her husband was beating her up, and she was pregnant."  The police arrived and discussed the matter with Nidan and his wife, then noticed blood on a tissue and on the carpet.  Further inquiry as to its origin elicited Nidan's claim that his wife "had hit herself, and she was bleeding from the teeth."   Despite the wife's attempt at recantation, the trial didn't go too well.  Neither did Nidan's appeal, although appellate counsel did break new ground in confrontation jurisprudence, arguing that Nidan was denied his right to cross-examine his wife by virtue of the fact that she "speaks minimal English."  That might have gone somewhere had there been any evidence to support it; the court cites her statement and quotes extensively from the transcript, and it appears that Ms. Nidan had a sufficient acquaintance with English to bury her husband.  The argument that the jury should have been instructed on self-defense went nowhere, either, counsel stopping short of claiming that Ms. Nidan kept hitting her husband in the fist with her teeth.

State v. Bankston is worse.  Bankston is convicted of two counts of passing bad checks and one count of theft, and pleads guilty in a separate case to vandalism and falsification.  That results in ten assignments of error; somewhat typical is the contention that Bankston's post-sentence motion to withdraw her plea should have been granted because her lawyer failed to advise her of the affirmative defense of necessity.  Necessity?  Yes, the vandalism charge was based on Bankston's kicking out the windows of a police cruiser, because she “was left in a police cruiser for an extended period of time with no ventilation on a hot summer day” and that she began to “hyperventilate.”  The more interesting assignment was that the judge, by making the comment at sentencing that Bankston was "a textbook con artist who cons the system," considered in an improper and unconstitutional factor.  Turns out that the judge's comment was prompted by her finding out that Bankston, despite her claim to owning "seven rental properties,"  had retained an attorney for the check case, but had claimed indigency and gotten a public defender for the vandalism case.  The court comes up with a nice quote from a long-dead judge to handle that one:

Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.

All this is spread over 34 pages.  There's a half hour of my life I'm never going to get back.  (Remember, our motto here at The Briefcase:  we read the cases so you don't have to.)

But let's not just scratch our heads at defense attorneys; the court's decision in State v. Crosby provokes plenty of that, as well.  A drug deal turned bad results in a shooting, and Crosby's conviction of attempted murder and felonious assault.  A 9 mm handgun had been used, and the trial judge allowed testimony by four witnesses that the defendant carried such a weapon.  Well, sort of; one hadn't seen Crosby in two years, another said he had no idea what kind of gun Crosby had, and the other two hadn't seen Crosby with a firearm anytime near the date of the offense.  Oh, and did I mention that the gun used in the shooting was never recovered?

 The appellate court correctly conludes that this was wrong on so many levels, but nonetheless finds the error harmless and affirms the conviction.   Harmless?  As the court acknowledges, the test for harmless error is "where there is no reasonable possibility that unlawful testimony contributed to a conviction."  In the next sentence, the court determines that "there was credible evidence to support the defendant's convictions."  That's not quite the same thing, is it?

The court fares better, and provides valuable instruction to courts and lawyers, in State v. Ruppart.  Ruppart was charged with felonious assault, and the judge had instructed the jury that if it found him not guilty of that charge, it should proceed to consider the lesser included offense of aggravated assault.  It did, and convicted him of the latter. 

But, as the court notes, aggravated assault is not a lesser included offense of felonious assault, it's an inferior offense.  Felonious assault and aggravated assault have the same elements, except the latter includes the additional element of provocation:  if the jury finds that the defendant caused serious physical harm, but was provoked to do so, the jury can find him guilty of aggravated assault.

In the normal greater/lesser included offense case, the trial judge would've been right:  the jury can consider the lesser offense if  it finds the defendant not guilty  the greater.  But, as the court correctly notes, the inferior offense should be considered only if the jury finds the defendant guilty; obviously, if it finds him not guilty, there's no reason to consider the additional factor of provocation.

The problem is what to do about all this.  The court vacates the conviction of aggravated assault and remands the case back for new trial.  But there's a decent argument that Ruppart should have been discharged.  Again, in the normal greater/lesser offense case, the jury need not come to a verdict before they consider the lesser offense, and had that happened here, remand would have been understandable.  But the jury had returned all three verdict forms, finding Ruppart not guilty of the two counts of felonious assault, but guilty of the aggravated assault.  The acquittal of the greater charge should have ended the matter.


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