What's Up in the 8th
The Ohio Supreme Court handed down some momentous decisions in the last few weeks of 2010, perhaps none more so than State v. Johnson, which overruled State v. Rance and announced a new method of engaging in allied offense analysis. Or perhaps an old one... The court struggles with it in one case, and in several more engages in more work than it needs to.
One case it doesn't struggle with, and the only win for defendants, comes in State v. Toles. Two years ago in State v. Pettegrew, the 8th held that in order to justify an investigative stop based upon a hand-to-hand transaction, the police must actually see something exchanging hands. In Toles, the officer can say only that the defendant "apparently handed something to someone in the back seat," and that's not good enough. I was a little critical of Pettegrew when it first came down -- in fact, the criticism in my blog post made its way into the State's motion for reconsideration -- but the opinion does have the salutary effect of making a bright-line rule in an area where those are sadly lacking.
Somewhat of a puzzler this week is State v. Bratz, where Bratz, charged with felonious assault, pled out to the lesser offense of aggravated assault. His attorney told the judge at the plea that he'd be asking for a sentence of time served, the seven months that Bratz had spent in jail awaiting trial. The victim spoke, expressing her fear of Bratz, and the judge said she'd think about it for a couple of days and, if she didn't think seven months was appropriate, she wouldn't journalize the plea. Two days later, she called the case for sentencing, and gave Bratz a year. The court affirms, saying that the judge hadn't promised the seven-month sentence. What about not journalizing the plea? The opinion doesn't mention it. It then proceeds to Bratz's argument that his speedy trial rights were violated, and points out that the guilty plea waived that argument. End of that, right? Nope; the opinion devotes the next two pages to rehashing the docket entries to show that, of that seven months Bratz spent in jail, only forty-three days actually counted against his speedy trial time.
The court unnecessarily kills more trees in State v. Harris, where Harris argues his rape conviction should be reversed because the sexual assault nurse examiner (SANE) was allowed to read to the jury the history the victim gave her. The court relies on the Supreme Court's decision in State v. Stahl (discussed here) to deal with the Crawford issue, although the opinion doesn't indicate Harris raised that argument. For good reason; unlike the victim in Stahl, who died of unrelated causes prior to trial, the victim in Harris testified, and that takes care of any Crawford problems: Crawford only requires that the evidence be excluded if the defendant had no opportunity for confrontation. The court holds that the statement is admissible as having been made "for purposes of medical treatment and diagnosis," but while that's probably true for some of it, most SANE nurses will acknowledge that the purpose of the examination is also to accumulate forensic evidence at trial.
The court's first opportunity to road-test State v. Johnson and its new formula for allied offenses (discussed here) arises in State v. Burton. As the victim, Demetrius Matthews, was walking down the street, five males in a Buick Skylark drove past him, parked the car, exited, and confronted him, one of them, whom he later identified as Burton, displaying a rather impressive handgun. Matthews lay down on the sidewalk as prompted, one of the males went through his pockets, and all but Burton then walked back to the car. Burton waved the gun over Matthew's body, shot him twice, then got in the car and drove off. Burton was convicted of aggravated robbery, felonious assault, and kidnapping, with the trial judge declining to merge any of them.
The court first quotes extensively from Johnson, which focuses on whether the two offenses were committed by the same conduct. That presents little problem with the felonious assault and aggravated robbery convictions; there's an abundance of case law holding that the two don't merge, and it's clear that the act of shooting was separate from the act of robbery. Kidnapping and robbery would ordinarily merge, too; as the Supreme Court noted over a quarter century ago, "implicit within every robbery is a kidnapping. . . when a person commits the crime of robbery, he must, by the very nature of the crime, restrain the victim for a sufficient amount of time to complete the robbery."
But the court finds that because all of the assailants except Burton returned to the car, "Burton's continued restraint of the victim broke the causal chain and severed the subsequent kidnapping from the aggravated robbery." The reason for the reference to a "causal chain" isn't clear; this isn't a question of proximate causation. Normally, merger of kidnapping and robbery is avoided ony when there's some asportation separate from the robbery if Burton had forced Matthews into the car, taken him someplace else, and then shot him; that was pretty much the scenario in the 8th's decision a week earlier in State v. Huber. What's more, the court's opinion doesn't explain why the kidnapping wouldn't have merged with the felonious assault. There are numerous cases holding those merge, under the same theory: one has to restrain someone's liberty in order to assault him. The upshot of Burton is that he winds up with three convictions for two acts, and that seems to run contrary to Johnson.
Finally, State v. Lopez emphasizes a point I've made before: one of the considerations in deciding to waive a jury and try the case to the judge is that you pretty much kiss goodbye any evidentiary issues on appeal. Lopez, convicted of rape, raised a somewhat decent argument that the court had admitted Rule 404(B) evidence it shouldn't have, but that gets peremptorily dismissed by the court's observation that the trial court is presumed to know the law and apply it properly, and "we are confident that the trial court considered this evidence for its proper purpose."
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