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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

All quiet on the Columbus front, and in DC for that matter, but things get rolling in the former locale this week, with arguments on tap in several interesting cases.  In State v. Poole, Poole and her boyfriend were charged in a methampetamine operation; after she pled guilty to manufacturing, she testified in his trial and claimed that stuff found in a pocket of a coat he was wearing actually belonged to her.  For her troubles, she was indicted for possession, and the trial judge in her second case suppressed her testimony in BF's trial, claiming she should have been advised of her 5th Amendment rights.  The 11th District said no.  In State v. Miller, the defendant agreed to pay restitution at the plea, but the judge forgot to impose it at sentencing, and modified the entry to include it several weeks later.  The 8th said that's okay.  The big case, though, is State v. Hodge, which concerns the impact of Oregon v. Ice on State v. Foster.  (Discussed here).

So we'll have a busy week:  the normal features today and tomorrow, the a look Wednesday at how the legislature screwed up judicial release, a look Thursday at what you can do when the cops ask for your ID, and a discussion of the oral argument in Hodge on Friday.  In the meantime, in the courts of appeals...

Criminal.  6th District rejects contention that maximum 5-year sentence for 3rd-degree felony OVI is cruel and unusual punishment, says to meet that test "penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community"... No error in failing to give indigent defendant funds to hire expert on child interviews in sex cases, says 8th District, where trial court conducted voir dire on how interviews were conducted, defendant made only general allegations about children's susceptibility to suggestion, never identified expert he wanted to hire or explain testimony he anticipated expert would give... 1st District holds that suspect's statement "I can get a lawyer" not a clear assertion of his right to counsel so as to cut off interrogation... No error in failing to appoint counsel for defendant where court announced at arraignment it wouldn't consider jail sentence, and didn't impose one, says 5th District... 9th District find sufficient evidence for weapons under disability conviction where weapons found in plain view in house where defendant and wife lived... Res judicata bars claims in petition for post-conviction relief that could have been raised on appeal, says 5th District... 11th District says that defendant did not exercise sufficient diligence in protecting her rights, declines to accept delayed appeal filed twenty months after conviction...

Civil.  Trial court didn't err in using income averaging to calculate husband's income, where sale of his dental practice led court to conclude that he was underemployed, says 10th District... In personal injury case, jury awards no damages even though interrogatories reflect it found defendant negligent; 5th District says that granting new trial on all the issues, rather than just damages, was proper, where issues of proximate cause and damages were intertwined...  Somebody's still filing these?  10th District affirms summary judgment in slip and fall on ice and snow...

Well, yes, that does make a difference.  In State v. Bowlin, the 2nd District brusquely rejects appellant's claim that the Adam Walsh Act offends the ex post facto provisions of the US and Ohio constitutions, noting that the defendant was convicted of the sex offense requiring him to register after the AWA went into effect:  "It, of course, makes no difference whether the registration requirement is punitive or remedial, if the law is being applied prospectively."

Someone didn't get the memo.  In State v. Owens, the 5th District affirms the defendant's rape conviction, finding that the victim's statements to the police were excited utterances.  It may have been, but conspicuous by its absence from the opinion, or the assignments of error, was any mention of whether they might have been testimonial under Crawford v. Washington.  They almost certainly were, and should have been excluded on that basis.

It wouldn't have made a difference here; there was ample other evidence against Owens, and the court even went so far as to hold that any error in admitting the statements to the police was "harmless beyond a reasonable doubt," the standard for constitutional error.  But it can make a difference.  Crawford came out six years ago.  If you are trying criminal cases, there is no excuse for not knowing about Crawford and what it means.  If you are handling criminal appeals, there is no excuse for not knowing about Crawford and what it means.  If you are reading this blog, you very likely do know about Crawford and what it means.  Share.  Friends don't let friends who don't understand Crawford try cases.


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