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What's Up in the 8th

Milestone alert:  This is the 100th post I've written entitled "What's Up in the 8th."  I posted my first one back on September 30, 2008, but called it "8th District Roundup" for a while after that for some reason.  This is so much better.

Just to show that's it's not All About Me, let's actually take a look at the cases the 8th handed down last week.

I don't like it when a judge at a plea hearing simply rattles off the defendant's rights; I much prefer it when the judge actually takes the time to put them in plain English, and make sure that the defendant understands them.  The former approach does have an advantage, however.  In State v. Woods, the trial judge -- a very good one -- does an excellent job of advising the defendant the constitutional rights he's giving up by pleading guilty, with one exception:  she forgets to mention that the state has the burden of proving the case beyond a reasonable doubt. 

That's one of the constitutional rights specified under Crim R 11(C)(2)(c), which requires strict compliance.  Unlike non-constitutional rights, like improper advisement about post-release control, where failure requires the defendant to show prejudice (that he wouldn't have entered the plea otherwise), constitutional rights are automatic do-overs.  On somewhat of the same subject, judges at plea hearings continue to ask counsel whether the colloquy has been done in compliance with Rule 11.  I have no idea why they do that.  I've always responded, "They pay you the big bucks to figure that out, Sparky" -- on the inside, anyway -- but I've never seen it argued in the court of appeals that a defense attorney's concurrence with the judge's inquiry waives any error.

Two of the court's decisions take us down the dark alleyways of the evidentiary rules.  Mark Schumann goes to Cleveland Muni to contest his stop-sign ticket, and when the officer began reading from the citation, Schumann objected, arguing that the officer should be testifying from his independent recollection.  "He can refresh his memory if he needs to," the trial judge groused.  Wrong answer, says the court in Cleveland v. Schumann.  Present recollection refreshed under Evid R 612 requires a foundation:  the witness must profess no present recollection, at which point he's allowed to read the document and, if he now remembers, or pretends to, he can testify.   The lack of foundation compels the court to sustain Schumann's first assignment of error, that "the trial court erred in treating Officer Rodes as a competent witness."  A bit harshly worded, but a sentiment with which our new governor would probably wholeheartedly concur

The sneaking feeling that we wouldn't see a felony conviction reversed on this basis is confirmed by State v. Coleman.  Coleman and a guy named Catron were charged with an aggravated robbery, and Catron pled out and agreed to testify against Coleman.  Well, not so much; when Catron was called as a state's witness, he claimed that the police had him sign a blank statement, that they'd tricked him into pleading guilty, and that neither he nor Coleman had anything to do with the robbery.  His proffer statement was read by the detective to the jury, and admitted into evidence.

That was the problem.  Upon a showing of surprise and affirmative damage, a party can impeach its own witness with a prior inconsistent statement under EvidR 607, but the statement can't be introduced as substantive evidence.  Under 801(D)(1)a), it can be if it's made under oath, but this one wasn't.  Under 801(D)(2)(e), a statement can be introduced as substantive evidence if it was made by a co-conspirator during the course of and in furtherance of the conspiracy, but the courts have held that a confession to the police doesn't qualify as that.  The court does a nice job taking us through all this, but then they spin the Wheel of Justice and, as on so many other occasions, it stops on Harmless Error.

A couple weeks back I posed the hypothetical of a drug buy/bust resulting in three separate convictions -- sale, preparation for distribution and sale, and possession -- and that hypothetical comes to life in State v. GoodsonThe court examines State v. Cabrales and quotes extensively from its reasoning that sale and possession don't merge because one can offer drugs for sale, or sell them through a third party, without possessing them, and remands back for merger of the prep for sale and possession.

As I pointed out, though, Cabrales was an attempt to rescue the "abstract elements" test in State v. Rance, and since Rance was overruled by State v. Johnson two months ago, it's highly questionable whether Cabrales is still good law.  Especially on the point here:  Johnson says that the defendant's conduct is the focus, and here it was the single act which resulted in three convictions.  Even more troubling than the result in Goodson is that Johnson, the most important decision on allied offenses in over a decade, isn't even mentioned.  It's like a court in 1956 considering a racial segregation case without mentioning Brown v. Bd. of Education. 

State v. Thomas has us travel the well-worn road of sufficiency of indictments in child sex cases.  Thomas raped his stepdaughter over a period of several years, and it resulted in conviction of ten counts of sexual battery.  (He was also convicted of several counts of rape, and of some other offenses.)  I've written on this subject several times (here, here and here), and basically the law is that the indictment or bill of particulars must set forth the incidents with sufficient specificity:  "copycat" indictments -- say, thirty-seven identically-phrased counts of sexual battery with the offense date of "December 2007 - January 2009" -- aren't adequate to inform the defendant of the charges against him and to allow him to prepare a defense, unless further information is given in the bill of particulars.

These cases are always fact-intensive, but what's interesting here is the way the court parses the facts to decide which convictions will stand.  The girl testified that Thomas would rape her "almost everyday" when they lived in Maple Heights, that he raped her "about thirty times" after they moved to Euclid, and that he touched her chest three times, and another witness testified that he observed Thomas lie down next to the girl while she was asleep and put his hand in her pants.  That's "sufficient factual bases to differentiate four counts of sexual battery," and so the counts are reduced from ten to four.

Finally, we come to State v. Phelps, a motion for new trial in a 1995 murder case (resulting from a murder a decade before that), based on the revelation that a key state's witness had been hypnotized.  The whole subject of hypnotized testimony is so ten years ago, and the court wades through that thicket, the key factor being whether the wtiness' testimony was improperly bolstered by or product of hypnosis.  Which would be tough to do a quarter century later, when most of the major players (prosecutor and defense attorneys) are dead, the witness takes the 5th, the detective who did this now lives in Scotland, and nobody else remembers squat.  All I can say is that the whole thing made me very sleepy.


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