What's Up in the 8th
I've often thought that Milton Bradley should make a board game out of Ohio's sentencing scheme. "Judge screws up PRC -- advance three spaces." "Judge gives disproportionate sentence -- appellate panel laughs and tells you to go away." Of the five criminal decisions handed down by the 8th last week, three would serve as useful models for such a game.
Take State v. Nicholson. Back in 2004, Nicholson was given 20 years for attempted murder and a couple of felonious assaults. He appealed, and the 8th District held that the judge hadn't made sufficient findings to warrant imposition of consecutive and non-minimum sentences. (This was back before State v. Foster held that requiring judges to make findings before imposing consecutive or non-minimum sentences was unconstitutional, of course.) The 8th remanded the case for re-sentencing, but the resentencing didn't occur until March 2006, about three weeks after Foster came down. Which means the judge didn't have to make any findings, and he didn't, but knocked two years off Nicholson's combined sentence anyway.
Unfortunately, while doing so, the judge forgot to put in the proper advisement about post-release controls, specifically, that violation could result in a Nicholson going back to prison for up to one-half the original sentence. So Nicholson filed a motion to vacate the sentence, the judge denied it, the case went up on appeal again, and the court agrees that, pursuant to State v. Singleton, he's entitled to a new hearing, but only "for the limited purpose of the proper imposition of postrelease control pursuant to R.C. 2929.191."
Ooops. In Singleton, the Supreme Court held that 2929.191 applied only to sentences handed down after its effective date, July 11, 2006. For sentences imposed before that -- like Nicholson's, in March of 2006 -- a de novo resentencing is required. And then, of course, there's the pending Supreme Court decision in State v. Hodge, which will determine whether Foster was wrong about judges not being able to make findings for consecutive sentences, and I started wondering how a favorable decision for defendants in that case might affect Nicholson, but then my head started to hurt, so I stopped.
More fun and games with sentencing in State v. Jackson, involving sexual classifications. Jackson pled guilty to gross sexual impositon abduction with a sexual motivation specification in 2007, and, on the basis of the latter, was classified as a Tier II sex offender. Apparently, no one realized that the sexual motivation specification didn't apply to abduction until two months after Jackson pled to it, and eight months after he committed the crime. The judge did when the parties moved the court for a final appealable order -- the judge hadn't dealt with some of the specifications, or the dismissal of the second count -- and reduced the classification to Tier I, for the GSI conviction. The State appeals, claiming that a nunc pro tunc entry wasn't the way to accomplish this, but the court says it is, and guess who wins that argument?
And then we come to State v. May, a child rape case where the State is chastised for asking the social worker if, during his interview with the defendant, the defendant made eye contact with him. There's nothing wrong with that, says the court -- testimony about a person's demeanor is alway admissible -- but the prosecutor went too far by then asking, "Did you find this disturbing?" and eliciting a positive answer. That's too close to opinion testimony about veracity, which is forbidden. No matter to May, since the court finds the error harmless, although two judges take the time to join in a concurring opinion telling the prosecutor how bad he was for asking such a thing. But the panel also determines that the judge goofed: after giving May a 25-to-life sentence, the judge told him that if he violated PRC "he could receive an additional penalty up to 12 and-one-half years, but never informed him what that penalty could consist of." And so May goes back for a hearing at which he will be sorely disappointed to learn that a violation of PRC could result in him going back to prison for up to 12½ years, instead of to Disney World.
I've commented before about how difficult it is to get a court to throw out identification testimony, but that's exactly what happens in State v. Farrow. Two people had been robbed at a bus stop, and ten weeks later the detective contacted them and told them that the person who'd robbed them had been caught, and had shot someone else just a few blocks away during another robbery. He then showed them a photo array, and they both identified Farrow. From the excerpt of the detective's testimony in the opinion , it's not clear he told them that the array included a picture of the suspect that had been arrested, but the court concludes that he did, and that's a no-no. Since the array was impermissibly suggestive, the next question is whether the in-court identification was reliable in the absence of the tainted array. That's pretty much a no-brainer here. The trial judge tossed out both ID's, and the State conceded that one was flawed and inadmissible, but appealed the other. Oddly, in the one they appealed, the victim had been unable to give any description at all of the perpetrator.
Finally, a civil case of note. Back in 2003, Tony and Nina Zappitelli bought a house from Lawrence and Karen Miller for a tidy half-million plus. Shortly after moving in, the Zappitellis discovered they were in a remake of Noah's Ark: not only was their basement flooded, but "the land surrounding the residence was engulfed in water several feet deep." There was some evidence of shady goings-on: the Millers had entered into a purchase agreement with another party less than a month before, only to have that party back out of the deal when their home inspector discovered active mold in the basement, a fact that did not find its way into the disclosure statement the Millers gave the Zappitellis. That and other shenanigans served as the basis for the Zappitellis lawsuit, and the jury's award of $134,500 in damages, the jury specifically finding that the Millers "fraudulently concealed material defects affecting the property."
Coldwell Banker had handled the sale for the Millers, and during the trial, the Millers learned for the first time that one of the neighbors had approached the Millers' real estate agent during an open house and told him about the flooding in the home. This, the Millers claimed, had never been relayed by the real estate agent, and so they sued Coldwell Banker for negligence and breach of fiduciary duty in its representation of them, and were awarded $126,858 in damages. Not too shabby, but it all goes away; in Miller v. Coldwell Banker, the court reverses, finding that the determination that the Millers had engaged in active fraud in the Zappitelli trial precluded them from arguing they were duped by Coldwell Banker. The court does a nice job discussing the central issue in the case, collateral estoppel, and comes to the correct conclusion.
Wouldn't make much of a board game, though.