What's Up in the 8th
And here you are, all bright-eyed and eager to read about the 86 decisions the 8th District handed down while I was lolling around on the beach in a Mai Tai-induced alcoholic stupor. (Hat tip to the bartender at the Hard Rock Cafe in Lahaina: yes, a Hurricane is better than a Mai Tai. And, if you're reading this -- and why wouldn't you be? -- had you been more intent on getting me my bill instead of chatting up the hot blonde, you might have been more amply rewarded for your advice. Hope things worked out with the blonde.)
Well, bad news for the bartender, bad news for you: we're not going to go through all 86 decisions. But there are five which merit attention. We'll play my version of "good court, bad court," today highlighting four decisions which the court got right, and relegating the clunker to tomorrow's discussion.
Last year, in Padilla v. Kentucky, the US Supreme Court held that a lawyer had provided ineffective assistance by incorrectly advising his client, a resident alien, that there would be no immigration consequences for his guilty plea to drug trafficking. (Padilla discussed here.) The defendant in State v. Bains attempts to hook his wagon to that decision; he seeks to vacate the plea he entered in 2003, claiming that when the judge advised him, as required by RC 2943.031(D), of the possible deportation consequences, his lawyer assured him that the judge had to do that for any non-citizen, and it didn't mean anything. The 8th has been quite immigrant-friendly in such cases, as exemplified by its decision last year in State v. Kiss, where it vacated a plea entered 47 years earlier, on the basis that the statute expressed a "strong policy" preference for vacating pleas in such cases, despite the fact that the legislature didn't get around to expressing this "strong policy" preference until almost 30 years after Kiss had entered his plea. Not so this time; the trial court had clearly advised Bains of the potential problems (as the trial court in Padilla had not), and the lawyer had sent a letter to the client advising him to secure the advice of an immigration attorney.
The defendant in State v. Barrett receives a better result, although not without some sleight of hand by the appellate panel. Barrett was in county jail, awaiting transfer to Federal prison, and had a state case pending here, so he filed a notice of availability under RC 2941.401, which gave the state 180 days in which to bring him to trial. It didn't, so the trial judge dismissed the case on that basis. Incorrect, says the court: the statute only applies if the defendant is being held in a state prison, not a county jail or the Federal pen. But the Interstate Detainer Act, codified in RC 2963.30, allows a defendant held in a Federal prison or prison in another state to file the same sort of claim, and also provides a 180-day time limit for trying him after he does so. Of course, the statute has numerous requirements, among which are that the notice must be accompanied by a certificate from the warden of the facility showing the term of imprisonment and how much time the prisoner has left. No matter; the defendant need only "substantially comply" with the statute's requirements, and by sending the notice Barrett did just that, although blissfully unaware that he was doing so.
When does an arrest warrant give the police the right to enter a home? That was pretty much settled some 20 years ago back in Steagald v. US:
When the police execute an arrest warrant, they can only enter a residence of a third party without a search warrant if they have a reasonable belief that the person named in the warrant lives at the residence and is in fact home.
In State v. Mansaray, US marshalls had an arrest warrant for a Rodney Williams, and gained information that Williams "hung out" with Mansarray. That was sufficient for them to decide to go to Mansarray's house and, when he answered the door, tell him they needed to look for Williams in the house. Williams wasn't there, but a lot of Ecstasy pills were, and they formed the basis for Mansarray's conviction of drug trafficking. The trial court denied the motion to suppress, based upon the 8th's earlier decision in State v. Johnson.
Here's where it gets tricky. In Johnson, the person named in the arrest warrant was the one contesting the search; here, it was the homeowner. The arrest warrant is sufficient to overcome the privacy interest of the person named in the warrant, but not of the homeowner; for that you need a search warrant, unless the arrestee also lives in the house.
State v. Irizarry presents a tricky hearsay/Crawford question. Two juveniles burglarized a home, and one of them, Gordo, helpfully left fingerprints behind; when he was arrested, he made a statement fingering Irizarry as his accomplice. Gordo shortly thereafter became very dead, and Irizarry was subsequently convicted of his murder. His appeal focused on the admission of Gordo's statement implicating him in the burgary.
Admission of the statement had to overcome two hurdles. First, as an out-of-court statement, it's arguably hearsay. Not actually, though; hearsay is a statement sought to be admitted to prove the truth of the matter asserted, and here the statement wasn't being used to prove that Irizarry had committed the burglary, but to show his motive for killing Gordo.
But the statement is unquestionably testimonial under Crawford, which would normally bar its introduction, regardless of whether it is admissible under the hearsay rules. Normally, but not here. Crawford is concerned with the right of confrontation, and in Giles v. California the Court recognized that one of the exceptions to the right at the time of the constitution's framing was "forfeiture by wrongdoing": a defendant can't claim that he was denied his right to confront a witness when it is his own act which has rendered the witness unavailable. Giles held that the state must show that the defendant committed the act with the purpose of preventing the witness from testifying, a requirement that is also contained in EvidR 804(B)(6), which is the codified exception to the Ohio hearsay rule for forfeiture by wrongdoing. The court spends a bit too much with the Ohio rule and a bit too little with the constitutional aspects -- while Crawford is mentioned in passing, Giles never is -- but the end result is correct, and demonstrates that the court's come a long way in its understanding and application of Crawford.