What's Up in the 8th
The State pushes the envelope of the 4th Amendment, and the court pushes back. We get Biblical this week, and follow the Psalm in noting that for everything there is a season: a time for war, a time for peace, a time for raising speedy trial issues or filing a motion to vacate a judgment. And there's also a time when you shouldn't answer a cell phone, specifically, after you've just stolen it.
To get non-Biblical, in law, as in comedy, timing is everything. The defendant in State v. Miller raises a speedy trial issue -- right after he's entered a guilty plea. As the trial judge tells him and the court confirms, a guilty plea waives any defect in the proceedings to that point, including a speedy trial violation. A default judgment is obtained on the cognovit note signed by the defendant in Kennedy Mint v. Print Wave, but he claims that the equipment he purchased for the note was defective. His motion to vacate for "other grounds" is not subject to the one-year limition for most such motions, but it still must be filed within a "reasonable time." Alas for him, a "reasonable time" is when he found out the equipment didn't work, not three years later.
It's annoying to follow someone on the highway who has his turn signal on for miles and miles, and the Cleveland cops in State v. Fears decide to act on that annoyance, pulling Fears over for violating the Cleveland ordinance which requires you to turn after putting on your signal. The computer notified them that there was a "possible warrant" out for Fears, so they patted him down and found drugs.
One problem: the ordinance in question prohibits you from turning without signaling, it doesn't prohibit you from signaling without turning. The State nonetheless argues that the stop is valid, because the police had a "good faith" belief that they had witnessed a traffic violation.
Think about this for a minute. Back in Whren v. US, one of the most wretched 4th Amendment decisions ever handed down, the Supreme Court held that the subjective intent of an officer did not matter: even if the traffic stop was a pretext for searching for drugs or guns or whatever, as long as there was an objective basis for the stop -- a traffic violation -- it was valid. If subjective intent is irrelevant, then subjective belief should be, too. It's bad enough that the cops can pull you over for any bullshit traffic violation if you happen to arouse their suspicions, like, say, by being black or poor. Now you're telling me that they should be able to pull you over for bullshit which isn't even a traffic violation because they think it is? Fortunately, the court cites a number of cases holding that "legal justification must be objectively grounded," and reverses the denial of the motion to suppress.
The Brand New World of Allied Offenses ushered in by State v. Johnson is the subject of a thoughtful concurring opinion in State v. Williams. The case presents a run-of-the-mill merger question -- are rape and kidnapping allied offenses -- and the expected answer: yes, they are, unless there's a separate animus. In fact, it wouldn't be necessary to resort to Johnson to answer that question; that's been the law for years.
The concurrence nonetheless takes the opportunity to examine Johnson more closely, and argues that we might be overreading it: that Johnson did not completely untether allied offense analysis from the requirement that a court look to the elements of the offenses, but merely supplemented that requirement.
In looking at multiple offenses, the legal elements of those offenses give us the needed guideposts for examining the defendant's conduct to determine if multiple offenses could have been committed by the same conduct... Virtually all crimes start with an offender having "one purpose," but this does not automatically mean that all the offenses the offender may commit during a course of conduct are slavishly tied to that initial criminal goal. The arsonist who breaks into a building with a purpose to set a fire that results in the deaths of the residents may arguably be punished separately for burglary, and even manslaughter or murder, in addition to the arson, if the analysis supports such a finding.
The problem, of course, is in determining whether there's a separate animus, and, as the opinion notes, Johnson gives no specific test on that. The problem is highlighted in Williams by the conviction for gross sexual imposition, which involved touching the victim's thigh, and the conviction for rape. Here, the touching was not done to gain access for penetration; the convictions might well have merged if it was.
The concurrence doesn't give a whole lot of answers, but it raises some important questions, and it's hard to quibble with its conclusion that prosecutors and defense attorneys will have to take more pains to develop a record to help trial and appellate courts evaluate the defendant's conduct. That's much more of a problem in cases where there's a plea, and a resultingly minimal factual record, but it can even be a problem with a trial. That's borne out by State v. Havergne, where the court remands the case for determination of whether the kidnapping and aggravated robbery convictions should have merged.
Havergne also provides another addition to the Big Book of Dumb Criminals. Havergne and his compatriot had just robbed a grocery store, and stolen not only some cash but the owner's cell phone. The owner's husband called the number, someone answered, the husband said he'd like to buy some drugs, and a meet was set up for that purpose. Havergne showed up at the appointed time, and so did the husband, in the company of several police officers he's invited to the rendezvous. Havergne was promptly arrested, and at trial claimed to have recently purchase the phone from "a tall black man at Tower City. Unsurprisingly, the jury didn't buy it -- probably because the victim identified him as the robber -- so Havergne gets nine years in the joint to figure out where he went wrong. I'm betting the epiphany occurs sometime in year eight.