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What's Up in the 8th

It's not over 'til it's over, says the State in a search case, and the 8th agrees.  In the meantime, the district's cases over  the past two weeks provide a rare reversal of a denial of a motion to vacate a guilty plea, give valuable lessons about what to do after a car accident, and have us pondering the question, what would you rather have, a crazy ex-girlfriend or a crazy neighbor?

A bunny boiler is the central figure in State v. Medardi, where the defendant -- cue Neil Sedaka's "Breaking Up is Hard to Do" -- takes her rejection badly, and becomes the Ex-Girlfriend from Hell, calling the victim repeatedly at work and home (over a thousand times, he claims) and leaving a bag of his shredded clothing on his lawn.  No major legal issue of note, except that if the indictment alleges that the incident took place on February 13, proof that it happened on February 14 is good enough. 

More profound lessons are provided in State v. Muniz, where the defendant apparently wanders the neighborhood, alternately threatening to kick everybody's ass and showing them her breasts.  (From the portrayal in the opinion, I'm guessing her neighbors regarded the latter as more offensive.)  After she's arrested in the last incident, she yells out the window of the police car at the person who had her arrested, "If you follow through on this, I'll kill you."  The court vacates the ensuing conviction for intimidation of a crime victim, holding that "where a defendant is charged with intimidation of a 'victim of a crime,' an essential element of the charge is that the underlying crime occurred and thus created a victim," and that the defendant "is entitled to notice of the predicate crime in the indictment."

After my two-fisted smackdown a fortnight ago, I get back in the saddle and, in State v. Torres, bring home a winner on an allied offense case, aided somewhat by the fact that the 8th District would have had to ignore about 20 years of precedent in order for me to lose.  Not that they haven't done that before... Torres raped a barmaid twice in a bar, the whole thing captured on videotape, and the trial judge held that moving her from the main area of the bar to the pool room constituted a sufficiently separate act of kidnapping.  The requirements for asportation and showing separate harm are more stringent than that, though -- I even found a case where the 8th had held that taking the victim from the living room to the bedroom between rapes wasn't enough to preclude merger, and that, as we say in the law biz, is pretty much on all fours, although perhaps not the best phrase to use in this kind of case.  One more note:  although you can't always tell the result from oral argument, when one judge asks the prosecutor, "Do you think the fact there was a videotape contributed to this bad decision?", that's a pretty good clue.

In State v. Sasso, the defendant pleads no contest to a 5th degree felony, his lawyer asks for a personal bond, and the judge denies it, whereupon Sasso asks to withdraw the plea, claiming he'd been promised he'd get a personal bond.  The judge's inquiry on this was limited to the following exchange:

THE DEFENDANT: I'd like to withdraw my plea because I was told that -

THE COURT: You know what? We're done, Mr. Sasso. Leave.

The appellate court reverses, finding this inquiry insufficiently searching, especially in light of the fact that the plea colloquy omitted any mention of whether any promises had been made to induce the plea.

Four months ago, in State v. Burke, the defendant had been stopped for a traffic violation, and the cop smelled a strong odor of marijuana as he approached the car.  He asked Burke if he could search the car, and Burke protested, but got out.  When he did so, a beer bottle fell out and broke.  Burke was arrested for open container and placed in the police cruiser while the officer searched the car, finding cocaine.  The 8th tossed the search, finding it impermissible under Arizona v. Gant.

I was critical of the decision at the time, noting that while Gant prohibited a search incident to arrest under those circumstances, it didn't prohibit a search where "another exception to the warrant requirement applies," and that "there's a boatload of cases saying that the police have probable cause to search a car if they smell marijuana."  Well, in Son of State v. Burke the court reconsiders its decision, and the State's ship -- er, boatload -- comes in:  the court vacates its original opinion and upholds the search.  The interesting aspect of the case is that the court convened en banc to decide this, and two of the three judges who'd voted to throw out the search the first time around voted with the 7-5 majority this time to uphold it.

And last, a civil case.  In Collins v. Colonna, the court affirms the denial of a motion for new trial in a car accident suit where the jury had returned a verdict for plaintiff, with $0 damages, after 30 minutes of deliberation.  Moral of the case:  if you're claiming permanent disabilities, it's better if the defense can't introduce a videotape of you performing your job.  It's even better if that job isn't being a stripper.

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