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What's Up in the 8th

This week, we learn that there are no hard and fast rules:  sometimes it's better to try a case to the bench, and sometimes it's better not to appeal at all.  The court takes another look at Arizona v. Gant, and decides the alpha and omega of plea hearings.  And we learn that criminal cases are not the only ones which tend to be recycled through the justice system.

The defendant in State v. Norris is convicted in 2007, and this is her second appeal, the first one having resulted in a reversal and remand for merger of the two felonious assault charges.  She claims she was denied her right to allocution at her resentencing, but the court rejects that, pointing out that while she remained silent, her lawyer did enough talking for the two of them, and never objected to the client not being able to say anything.  This being only the second appeal for Norris, she's certainly a piker compared to the defendant in the case last week, State v. Steimle, which represented the 5th appeal from his 1999 conviction.  Still, it's only four years since Norris was convicted, so there's plenty of time to raise other sentencing and post-release control issues.

The parties in Dzina v. Dzina don't need PRC issues to constantly beleaguer the courts; as the second paragraph of the opinion tells us,

For over a decade, the Dzinas have engaged in a long and contentious divorce. This case, “Dzina VII,” the latest chapter in the epic saga of the Ohio judiciary’s efforts to disentangle the Dzinas and their several business enterprises, is on the verge of breaking the record for interminable litigation.

Robin Williams once observed that cocaine is God's way of telling you you have too much money.  So is filing seven appeals from your divorce action.

Reversals on insufficiency of the evidence are rare, but the third in the past month comes in State v. GaleThe police pursued a car for a traffic violation, but the driver pulled into a driveway, baled, and successfully fled.  The police discovered a muffler receipt and a cell phone in the car; the receipt showed Gale's name, his address, and a cell phone number.  When the police dialed the number, the cell phone in the car rang.  The cops pulled Gale's picture up on their cruiser's computer, and it matched the person who'd fled.

The officers went to the address listed on the muffler receipt, where a young lady met them, and the resulting conversation led the police to a bedroom at the top of the stairs, where they found cocaine, a scale, and Gale's expired driver's license.  That was enough for the judge in a bench trial, but not enough for the appellate court:  excluding whatever the young lady told the cops -- she didn't testify at trial -- all the State had was the expired license next to the drugs, scale, and money in the bedroom, and that was insufficient to make a case for drug possession or trafficking.  The opinion states that "it is apparent that in rendering its verdict, the trial court relied on testimony that had been deemed inadmissible," a reference to the woman's testimony, yet notes that the trial court had consistently sustained objections to that testimony, and really didn't refer to it in its decision.

It's somewhat of an odd result, given that people have gone to the gas chamber on less circumstantial evidence than there was in this case.  Still, it balances the result in cases like State v. Butler, where the police officer is allowed to opine that based upon his years of experience, Butler had the look of someone caught in the commission of a crime.  If you say, "Geez, there's no way that's admissible evidence," you're right.  If you also say, "But I'll bet the court finds it to be harmless error," pick up your prize at the door.

Arizona v. Gant, which held that police couldn't search the interior of a vehicle incident to an arrest of the occupants once the latter were removed from the vicinity of the vehicle, had two major loopholes.  First, the automobile exception still applies:  if the cops have probable cause to search the car, they can.  Secondly, an inventory search is still permissible, which is why State v. Dent is important.  The police tried to avail themselves of that latter justification, but the court notes that Dent's vehicle was legally parked on the street, and thus there was no justification to impound it.  No justification to impound, no justification for an inventory search, and that's that.

In State v. Ortiz, the court had found that the defendant's convictions of rape and kidnapping were allied, but nonetheless imposed concurrent sentences.  Ortiz appeals, but the court finds that there was sufficient asportation -- Ortiz, a security guard, had apprehended a 15-year-old shoplifter, then taken her in his car to a separate building, where he'd raped her -- to constitute a separate animus, supporting conviction on both charges, and reverses and remands the case for resentencing.  Correct conclusion, wrong result:  under the appellate rules, a party seeking to defend a judgment against an appeal, but also seeking the change the judgment, has to file a cross-appeal, and the State didn't.  The court should simply have affirmed the concurrent sentences.

Finally, in State v. Palmer, the court wrestles with the metaphysical implications of a plea hearing.  On the day of trial, the parties engaged in on-the-record discussions about a potential plea, and the judge advised Palmer that if a deal was forthcoming, he pled, and was sentenced to prison, he could be put on post-release controls after that.  Palmer, though, expressed much more confusion about the judge's statement that the file had been "marked."  For those unfamiliar with practice here, the 150-some assistant prosecutors are deemed too stupid by their office to resolve even the most trivial case.  Instead, they must trundle down to the 9th floor, stand in line for a half hour or so with some of their other cohorts, and spend five minutes discussing the case with a supervisor, who will then approve any plea offer by writing it down -- "marking" it -- on the case folder.

Eventually, though, a bargain is made, Palmer enters his plea, the judge accepts it, and at that point again advises Palmer of PRC.  Too late!  says the court:  a plea ends when the plea is accepted.  So do we have to go through the charade of remanding this to spend more tax dollars so the trial judge can give the proper warning?  No; the judge's earlier advisement is sufficient.  One might suggest that if a plea ends when the judge accepts it, it doesn't begin until the defendant signals a willingness to offer one.  But the court looks at the "totality of the circumstances" and decides that Palmer was sufficiently advised, especially considering that Palmer was told by the judge that he'd "incorporated by reference the conversation you and I had earlier."  As if Palmer would have any idea in the world what that meant.

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