Avant le deluge
There are still a number of important US Supreme Court decisions in the pipeline, and they'll be coming out in the next couple of the weeks as the Court wraps up its term. And the Ohio Supreme Court can always provide entertainment, as it did with its recent holding that a cop's unaided estimation of speed was sufficient for conviction of speeding, a decision that's already in the early stages of a legislative override.
But today's a slow day, so I thought I'd take a closer look at a couple of 8th District decisions from a few weeks back.
First up is State v. White. (Side note for Stevie Wonder/Paul McCartney fans: the 8th District has decided 68 cases captioned State v. White, and only 10 captioned State v. Black.) White and several buddies broke into a house, and restrained, assaulted, and robbed the occupants, resulting in multiple convictions for aggravated burglary, felonious assault, aggravated robbery, and kidnapping. This, of course, for those few who could not see it coming, raises the issue of allied offenses.
I've written ad nauseam about the amorphous quagmire that is allied offense jurisprudence, to the point where the 8th District even quoted my blog to that effect. The court sets out to bring clarity to this area of law by engaging in an extensive historical overview of the intertwining of double jeopardy and allied offense concepts.
While interesting, it's largely unnecessary. White's twin convictions on the burglary, robbery, and assault counts was based on different subsections for each crime, one for using a deadly weapon and the other for causing serious physical harm. The validity of this was disposed of in State v. Brown. Brown (discussed here) essentially held that where the legislative intent is clear, the comparison-of-the-elements test for allied offenses is unnecessary. When the legislature creates an offense (aggravated assault in that case), it intends that only one offense be punishable, even when it is committed in various forms, so long as there is only a single act and animus. (Side note: my BFF Lexis informs me that the 8th District has decided over 140 cases captioned State v. Brown.) So Brown's convictions on those offenses merge, but he's still stuck with the six kidnapping counts, because they're against separate victims. Lesson: if you're going to do a house invasion, it might be smarter to pick one less densely populated.
The court faces a more difficult task in State v. Ray. Robert Crutchfield, a US Marine, found the streets of Cleveland more perilous than those of Baghdad; fresh from a tour in Iraq, he was robbed and shot while waiting for a bus with his girlfriend. Surgery that night barely saved his life, but a massive stroke the next day resulted in severe swelling of the brain, which led to doctors removing half his skull to relieve the pressure. He slowly recovered, undergoing yet another surgery to replace the portion of his skull that had been removed. All for naught; some four months after the shooting, he died from meningitis.
But not without giving some inkling as to the identity of his assailant. Several weeks after the shooting, he became responsive, and told his aunt that his assailant's name was "Spider" who was "a boy at my school." A detective prepared a photo lineup in which Crutchfield identified the robber, and also took down Crutchfield's statement. Crutchfield's sister testified that when he regained consciousness, about a week after the shooting, he made a "finger-crawling" gesture several times. Near the same time, he made the same finger-crawling gesture in his girlfriend's presence, and later wrote the word "spider" in his notebook. The trial judge ruled this and several other similar statements inadmissible, and the state appealed.
The court first addressed the identification of the photo and the statement to the detective. These are clearly "testimonial" statements under Crawford v. Washington. But that doesn't end the matter, because in Crawford and in its subsequent decision in Giles v. California, the Supreme Court recognized two historical exceptions to the Confrontation Clause: dying declarations and forfeiture by wrongdoing. (The latter applies when the defendant undertakes some act to prevent the witness from appearing at trial.)
A dying declaration requires two elements: that it was made in articulo mortis (at the point of death), and that it was made under a sense of impending death. The trial court had excluded the statements on the latter basis, but the court skips over that and decides they weren't made at the point of death. While there is a distinction between the two, in this case the same reason supports both: the statements were made in January and April, and Crutchfield didn't die until May.
The other statements don't implicate Crawford, because they were made to family members, not law enforcement personnel. That doesn't mean they automatically come in; they still have to fall within an exception to the hearsay rule. A dying declaration is one, and that doesn't pass muster here, for the same reason it didn't allow the statements to the detective: none of them were made "at the point of death."
That doesn't end the matter, though, because "excited utterances" constitute another exception to the hearsay rule. While there's a perception that the utterance has to be contemporaneous to the event, that's not necessarily true. (And not at all true in child abuse cases; courts have allowed statements made months, and even years, after the event under that exception.) The major determination is whether "the declarant is still under the stress of the event or whether the statement was the result of reflective thought."
The court concludes that the two "spider" gestures fall within the exception, finding that the gestures, made shortly after he regained unconsciousness, were made when he was still under the "nervous excitement" of the shock of finding himself being paralyzed on one side of his body, having a feeding tube and a catheter, and being on a mechanical ventilator. The other statements, made later, don't qualify.
One can pick nits with the court's conclusion, but that's just a difference in perspective; the court's decision is certainly supportable. What's more, it's a courageous decision, by both the trial and appellate courts: given the horrible circumstances of the crime, the natural tendency would be to find any justification for allowing the statements to come in. The court resisted that temptation, and wrote a precise, reasoned, and scholarly analysis of a complicated area of law. It is one of the best pieces of work to come out of the 8th in some time, and if you have a case involving dying declarations, this is the place to start your research.