What's Up in the 8th
Clothes make the man, especially if "Cuyahoga County Jail" is stenciled on the back of them, sometimes a woman is a man, and if you're a woman and go to a place called "Bum's Saloon," you probably shouldn't be surprised if you get into a fight with another woman. A big decision on double jeopardy, the court takes a do-over, and the fine points of advising a defendant of his right against self-incrimination are the features this week.
In State v. Bishop, the defendant's conviction for sexual imposition is sustained against a claim that there was no evidence of corroboration, as required by the statute. The case law on this is abysmal for defendants; last year, for example, the court in this case found corroboration from the fact that the victim's description of the incident was supported by her 911 call and her identification of the perpetrator. Here, the testimony of other witnesses that the defendant had made lewd comments about the victim's body was enough. What prompts some deja vu on my part is that this happened at the Cleveland Workhouse, and the opinion notes that the victim "reported that she had seen defendant in the shower and that defendant has male genitalia." All this brings back memories of my representation of a transvestite in a drug case, which you and future generations can read about here.
It's all about me, too, in State v. Flynn. Really; I handled the appeal. Flynn had pled out, and the only issue I could come up with is the argument that the plea was invalid because, when advising Flynn of his constitutional rights, the judge told him that he had "the right to remain silent." I argued that the advisement was insufficient because it didn't include the further information that nobody could use his decision not to testify against him, an argument unencumbered by any case law to support it. At oral argument, though, one of the judges expressed the view that the warning which had been given might not have been sufficient: the actual language of CrimR 11(C)(2) requires the judge to tell the defendant that he can't be compelled to testify against himself. Flynn's conviction is upheld, the one judge writes a concurrence stating that he'll consider the issue he raised if it's properly presented on appeal, which this one wasn't, and I relearn the lesson that sometimes it's better to look closely at the details before soaring off into IdeaLand.
The Fight at Bum's Saloon, recounted in State v. Mobley-Melbar, teaches one lesson: the trial judge had ordered $81,000 in restitution, based upon the victim's medical bills, but even though the defendant had neither objected to this nor requested a hearing, the court reverses on a plain error analysis, saying that the judge had the obligation to determine what portion of the bills had been paid by insurance, since only the victim's actual losses could be considered. Another lesson is taught by State v. Foster: while trying the defendant in jail clothes might be prejudicial, it's not reversible error unless the defendant was compelled to do so, and here there's no evidence of compulsion; in fact, the court concludes that this may have been a "trial strategy" on the part of counsel to gain sympathy for his client.
Back in April, in State v. Banks, the court concluded that involuntary manslaughter and failure to comply -- the old "fleeing and eluding" -- were allied offenses. I criticized the decision at the time, and last week the court grants the state's motion for reconsideration, vacates that opinion, and affirms the conviction. One problem, which apparently hadn't been raised in the initial briefings, is that the defendant had argued the same issue in his original appeal (this was an appeal from a resentencing) and had lost; the court concludes that the law of the case compels the same result here. Even if it hadn't, the court engages in the proper allied offense analysis and concludes that the offenses are not in fact allied.
The big decision, though, is State v. Melton. Melton had gotten into a tiff with his girlfriend, threatening her and disconnecting the phone line. He was charged in municipal court with aggravated menacing and criminal damaging, and worked out a deal, pleading to the first, with the damaging charge dismissed. Ten days later, he was indicted for disrupting public services and menacing. The trial court kicked it out on double jeopardy grounds.
The basis test for double jeopardy is the Blockburger test: to avoid double jeopardy, each offense must have an element that the other does not. The menacing/aggravated menacing charges are easy: obviously, a plea to the latter precludes a conviction for the former.
But what about the disrupting public services/criminal damaging charges? As both the trial judge and the appellate court concede, these don't meet the Blockburger test: the latter requires actual damage to property, while "tampering" is sufficient for the former, and the former requires some interruption to a radio, telephone, utility, etc. Instead, the court concludes that the defendant had a reasonable expectation that his plea in the municipal court would terminate the proceedings against him.
The law in this area is largely borrowed from cases like State v. Carpenter, which involved a plea to felonious assault; two years later, the victim died, and the state indicted Carpenter for murder. The Supreme Court held that the defendant's negotiated guilty plea foreclosed the state from pursuing additional charges unless the state expressly reserved the right to do so at the plea. Underlying the court's conclusion was the the concept that plea bargaining is an essential part of the criminal justice system, and the defendant was entitled to understand what he was getting from it. A decade later, though, the court substantially retreated from Carpenter, holding in State v. Zima that the defendant's expectation that a guilty plea would terminate the proceedings would be "exceedingly difficult to sustain" unless "the prosecutor and the court had jurisdiction over all the charges, both actual and potential, and. . . the negotiated guilty plea included the dismissal of all pending charges."
That's obviously not the case in Melton. Still, until the Supreme Court decides to the contrary, the law in the 8th is that when all the charges arise out of the same incident and the same conduct, a plea to whatever charges are brought in a municipal court is likely to bar further felony prosecution.