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Case Update - They're Baaack

Well, I am, from a week-long hiatus.  Not so much the Columbus Seven; the only news on that front is the scheduling of oral argument in State v. Hodge, the case that presents the question of whether judicial fact-finding for consecutive sentences should be reinstated in light of the US Supreme Court's decision in Oregon v. Ice (discussion here).  That goes down on September 15.  In DC, Elena Kagan gets sworn in, and sometime in the next couple of weeks I'll have a preview on the cases the Court will be deciding next term.

In the meantime, no rest for the courts of appeals; the 8th District alone handed down 14 decisions in just criminal cases last week.  So let's take a look...

Criminal.  10th District upholds denial of jury instruction on entrapment, says informant and defendant began discussing deal before informant became government agent, therefore deal did not originate with goverment; excellent discussion of subject... Where defendant acquitted of possessing criminal tools, judge should not have ordered forfeiture of money which served as basis for charge, says 8th District... 5th District upholds max consecutive sentences for defendant's shoplifting spree, says thefts from separate stores are not allied offenses... In two-prong test for pre-indictment delay -- prejudice to defendant and justification for delay -- Defendant must show actual, not speculative, prejudice to warrant dismissal, says 9th District; if he can't, court doesn't proceed to second prong... To warrant vacating plea for failure of judge to properly advise of post-release controls, defendant must show that he wouldn't have entered plea otherwise, say 8th District; so does 12th District... While explanation of circumstances is permitted upon plea of no contest in misdemeanor case, and court can find defendant not guilty, in felony case such plea requires finding of guilt if the indictment contains sufficient allegations to state an offense, rules 2nd District... Court didn't err in admitting evidence of defendant's prior conviction for perjury as impeachment, even though it was outside the 10-year period, says 9th District; since defendant argued self-defense, his credibility was central to case...

Civil.  More than "bare fraud" must be shown to support award of punitive damages, says 10th District; must be "aggravated by existence of malice or ill will" or be "particularly gross or egregious"... 3rd District holds that whether claim is barred by res judicata is question of law for court, not of fact for jury... If defendant files tardy answer without seeking leave and showing excusable neglect, denial of plaintiff's motion to strike answer is abuse of discretion, says 3rd District... 11th District rules that trial court has jurisdiction to consider motion for sanctions for frivolous conduct after plaintiff files notice of voluntary dismissal... 8th District upholds grant of visitation with child to mother's same-sex partner... 4th District says that trial court's designation of each parent as residential parent was error, because it essentially created a shared parenting plan, and neither party had requested one...

Roommates.  In State v. Alexander, the 8th District tackles the question of a guest's standing to challenge a search of a house.  Metropolitan Housing Authority police, whose understanding of the 4th Amendment approximates their knowledge of the fine points of quantum physics, banged on the door of the apartment of Eliza Alexander, defendant's mother, telling her that they were investigating complaints of drug activity and wanted to come in.  When she refused to allow them in without a warrant, they claimed to see defendant running by inside the apartment with a black object and entered the apartment under exigent circumstances (their story) or arrested her for obstruction of justice and entered the apartment anyway (her story).  The trial judge found that exigent circumstances didn't exist, but held that the defendant didn't have standing because there was no evidence he was staying there regularly.  The 8th reverses, holding that there was undisputed evidence he was staying there that night, and an overnight guest has standing.

On the other hand, as we find out in the 2nd District's decision last week in State v. McBeath, the fact that you're an overnight guest might not necessarilys save you.  McBeath was staying overnight at her brother's apartment when the police entered the place without a warrant, saw drugs in plain view, arrested her, and found more drugs on her person.  (This week's fashion tip:  if hiding drugs in your buttocks area, it's best not to wear form-fitting jeans.)   A warrantless search of a residence?  Surely that gets suppressed!  And it would have, too, except for the fact that the brother was on probation, and by virtue of that status had consented to the search without a warrant.

A fool for a client.  In State v. Stewart, the 2nd District reverses a conviction of assault where the defendant represented himself, finding that the trial court did not adequately explain the possible defenses and circumstances in mitigation which could be pursued.  In rejecting the State's claim that "any error was harmless because Stewart did a good job," the court notes that while Stewart's performance was "admirable," "the standard of review is not whether the defendant was lucky enough not to fail miserably."

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