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8th District Roundup

Rule No. 1 for trial attorneys is:  Make sure to preserve your record.  Failure to object normally dooms an appeal, limiting the reviewing court to the extremely vigorous "plain error" standard.  By luck or design, though, the trial attorney's failure to object in State v. Banner to the state's introduction of evidence regarding an offer to allow the defendant to take a lie detector test probably resulted in the reversal of defendant's conviction of several counts of child rape, and his sentence of 35 years to life.

The problem began simply enough:  during questioning of the investigating detective about his interview with Banner, the detective offered that as he accompanied Banner to the booking window, he asked him if he would take a lie detector test, and Banner refused.  On cross-examination, counsel asked a solitary question:  in how many cases in the last year had the detective decided not to present a case to the grand jury because the defendant had passed a polygraph test?  None was the answer.  The problem ballooned from there, with the prosecutor ultimately asking the detective whether he used polygraphs as an "investigative tool" (yes) and what Banner's reaction had been to the offer (he "immediately started shaking").  The court finds that the "unabated discussion of the issue rises to the level of plain error," although finding that "some of the responsibility must be placed upon the trial court."

Why?  What was he supposed to do?  Nobody objected.  As a matter of fact, think what might have happened had defense counsel objected at the first mention of the polygraph:  objection sustained, instruction to the jury to disregard, and that's the end of it.  And the appellate court would have dismissed the whole thing in a paragraph as harmless error.

Plain error also features in In re CB, where the defendant is convicted of carrying a concealed weapon, the only evidence of operability being the police officer's testimony that he performed the "pencil test":  put a pencil in the barrel, cock the hammer and pull the trigger, and if the pencil is ejected, that means the firing pin is operable.  (And if you're thinking that the pencil test was something different, you're right.  The court's analysis is less than rigorous:  it says says expert testimony as to operability isn't required, the officer wasn't testifying as an expert, even if he was he could give an opinion "based on his training and experience as an officer," all the while gliding by the central question: is the pencil test a reliable method of determining operability, especially in light of officer's admission that the test was not foolproof?  The court's finding that the testimony wasn't prejudical is also a stretch, since it was the only testimony on operability.

The court's opinion in State v. Clark is even more troubling.  Clark was charged with a particularly vicious shooting and robbery, and the victim positively identified him in a photo array and at trial.  The defense obtained an expert on eyewitness identification and made a motion to allow him to testify.  Last year,  in State v. Bradley, the 8th reversed a conviction because the trial judge had refused to appropriate money for an expert on eyewitness identification, relying on case law which holds that due process requires an expert be appointed for an indigent defendant when

the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial

The trial court overruled the motion here, distinguishing Bradley on several grounds:  there, the identification was made a month later, here it was made several days later, Bradley involved a cross-racial identification, this didn't.  The appellate panel agrees that "Clark failed to show that there was a reasonable probability that Dr. Wallace's testimony would aid in his defense."

In doing so, the court confuses two different concepts.  An indigent defendant isn't absolutely entitled to whatever funds he wants to hire whichever experts he wants, and there's not a problem to limiting his entitlement to those situations where he can show that due process merits an appointment, which is where the "reasonable probability" comes in.  But there's nothing that gives the trial court the right to screen the defense witnesses and only allow them to testify if the court decides that there's a "reasonable probability" that they'll aid in the defense.  To be sure, the trial court has a gatekeeper function here because this involved expert testimony, but that function is limited to determining whether the subject is one on which expert testimony can be useful, whether the expert has the necessary qualifications, and whether the methodology he uses is based on scientifically valid principles, not whether the expert's conclusions are correct or whether they satisfy the proponent's burden of proof at trial. 

Although the court insists that "this was not a case where Clark was convicted solely on eyewitness testimony," if there was any other evidence linking him to the crime, the opinion doesn't mention it.  Clark essentially holds that even if the defendant goes to the trouble of hiring his own expert on identification, he can't introduce the expert's testimony if the courts decide the identification is a strong one.  That's like saying that the court can preclude alibi testimony if it's convinced that the defendant was at the scene of the crime.  I'm sorry, but it's the jury's job to sort all that out.

Finally, in State v. LM, the state appeals the grant of an expungement, assigning two errors.  First, it claims, although the trial court did have a hearing, as required by statute, it "immediately issued its order granting appellee's request without hearing from any of the parties present."  Unfortunately, this contention is not buttressed by the transcript of the hearing or an agreed statement of evidence showing that this is what transpired.  Second, the state claims, the defendant was ineligible for expungement because he had a prior conviction for disorderly conduct in a municipal court.  Again, there's nothing in the record, like a journal entry of the prior conviction, to support that assertion.  So the decision is affirmed, and the state learns Rule No. 1 of Appellate Practice:

Just because you say it happened don't make it so.


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