What's up in the 8th
Last year, I started keeping track of the reversal rate in criminal cases in the 8th. That got to be more of a bother than it was worth rather quickly; I quit doing it after about four months. The stats I had at that point showed that the State won about 85% of all cases, but only about 45% of those involving search issues.
I should have kept track of how many cases from municipal court got reversed. It had to be close to 70%, and the decision in Bedford Heights v. Boykin shows why.
Boykin was charged with assault, but in her first court appearance, after filling out various forms, she was told that she was above the income limit for appointed counsel. So she represented herself. The law on self-representation is that the court has to conduct a Faretta hearing, at which it's supposed to engage in a probing inquiry to determine whether the defendant understands the perils involved. The last one I was involved in took forty-five minutes. This one took appreciably less -- zero, in fact. The city prosecutor belatedly conceded that the waiver of counsel was invalid, and so back it goes.
I talk to a fair number of judges, and if there's one thing that annoys them profoundly, it's getting reversed for correction of post-release controls. Last week I mentioned that the Supreme Court's recent decision in State v. Fischer allows the court of appeals to modify the sentence without a remand, and suggested that when the memo was circulated among the robed ones over on Lakeside, "we'll probably see the court doing that a few weeks from now." As the Chambers Brothers told us, time has come today, and in State v. Christinger, that's exactly what the court does. So that should lead to a happier common pleas court bench.
I usually don't bother with cases which deal with sufficiency of the evidence, but there were some interesting ones last week. First is State v. Starling, which involved this fact pattern: confidential informant goes up to co-defendant Thompson on the street, and engages him in conversation. Shortly after that, Thompson goes over to Starling, who's sitting in a parked car. Thompson talks to Starling, then goes back to informant, and engages in a hand-to-hand transaction. Which, when the police immediately descend, turns out to have been drugs. They arrest Starling, too, but he argues that his resulting conviction is based on insufficient evidence that he had anything to do this: after all, the police only saw him talking to Thompson, they didn't see Starling exchange anything with him.
Apparently, though, that was because Starling was more deft of hand: the police found the twenty-dollar marked bill the informant had used in the transaction in Starling's pocket. Reminds me of a case I once had where, after the cop testified that he'd found the marked money on my client, my client leaned over and heatedly whispered, "They didn't tell me it was marked!" They never do.
The other is State v. Wyland, where the defendant was convicted of two counts of assaulting a police officer, one for kicking him and one for spitting on him. The court overlooks the distasteful facts and decides that the evidence isn't sufficient to support the second. The officer testified that the spitting didn't do him any harm, but that he'd gone to the hospital to be tested for communicable diseases. The 8th has previously held on numerous occasions that simply seeking medical treatment is sufficient proof of serious physical harm to uphold a felonious assault conviction. That's silly -- as any personal injury lawyer can tell you, in many cases the degree of medical treatment bears only a distant relationship to the degree of injury, and besides, shouldn't the issue be whether the person needed medical treatment, not whether he sought it? -- but that seems to doom Wyland's chances here. But no; the court distinguishes between getting medical treatment and going to the hospital for medical testing, finds that only the latter was present here, and decides that's not sufficient proof of harm.
The court continues to do a good job with allied offenses, and does better with Crawford issues. The latter is in play in State v. Stoutemire, which involved a bunch of people fighting; as best I could glean from the factual recitation, they were armed with machetes and fire extinguishers. And no, I'm not making that up. At any rate, the question is whether the victim's mother's 911 call should have been allowed into evidence. In contrast to several past decisions, in which the court has conflated the issue of whether the statement is testimonial with whether it falls within a hearsay exception, the court here makes those two discrete inquiries. First, it decides that the 911 call falls within the "emergency" doctrine of Davis v. Washington, i.e., that it was made for the purpose of summoning police help for an ongoing emergency, rather than to give an account of past events for use at trial. The court then proceeds to the question of whether the statements qualify under an exception to the hearsay rule, and if you guessed "excited utterance," pick up your prize at the door.
The defendant in State v. Dix proves much less creative in his choice of weaponry, and is convicted of three counts of attempted murder and two counts of felonious assault for shooting into a car which contained three people. The two counts of felonious assault involved the same victim, the only person who was actually hit, and two subsections of the statute -- one for causing serious physical harm, and the other for using a deadly weapon; they obviously merge into each other, and, under the post-Rance regime inaugurated by State v. Johnson, merge into the attempted murder conviction as well.
Whether the attempted murder convictions merge is the harder call; Dix argues that they do, because although he fired multiple shots in quick succession, his firing into the car constituted a single act. That's true, but as the court correctly notes, "where a defendant commits the same offense against different victims during the same course of conduct, a separate animus exists for each victim." The court distinguished a 30-year-old case in which it had held that the defendant lacked a separate animus for convictions of three counts of felonious assault; the evidence there showed that he had clearly intended to hit only one victim, although there were two other bystanders some distance away. Here, there was no indication that Dix was aiming for any specific passenger, and since his "actions were consistent with an intent to kill anyone who was in the truck, there was sufficient evidence to find a separate animus for each count of attempted murder."
For the second time in three weeks, the court reversed a rape conviction for ineffective assistance of counsel; if that isn't rare enough, another oddity is that the appellate counsel for the latter case was trial counsel in the first. We'll talk about those cases tomorrow.