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What's Up in the 8th

Apropos the Easter holidays, two family gatherings you'd probably want to skip.  In Sanders v. Nationwide, the insurance company gets summary judgment in its attempt to avoid paying for the fire damage to Sanders' home, on the grounds that her son intentionally set the fire.  Although Nationwide could use the boy's admission in the juvenile delinquency proceeding to establish arson, he had some emotional and mental problems, and the case goes back, because the question of insanity -- lack of intent -- for insurance cases is different from that for criminal cases.  And in Chattree v. Chattree, the court affirms a directed verdict for the father on his suit against his daughter on a promissory note for $187,000, which was intended to cover the costs of renovations needed for her new apartment, the one for which he'd given her $450,000 in cash and co-signed an $843,750 mortgage.

On the other hand, Demetrius Harris should have the wherewithal to throw a nice shindig, given the 8th's decision in Harris v. Mayfield Hgts. that he's entitled to the return of the $15,084.47 the police seized from him after a traffic stop.  The city claimed that they'd turned the money over to the Feds, but in a particularly stinging opinion -- at one point, the court analogizes the situation to "a thief plac[ing] stolen property in the home of a third person" -- the court finds that there's no evidence to support the contention that the money was ever given over.  Whether Harris will get his money is another story; if it was indeed turned over, he'll have to pry it out of the cold, dead fingers of the DEA before he'll see a dime. 

Also having a bit more money than she planned on is Kristin Moore-Bennett.  Charged with the theft of $2,800 in cash, she tried the case to the bench, and the trial judge split the baby several ways, finding her guilty of misdemeanor theft, but deciding that evidence of the amount was "unpersuasive," and instead settling on $2,061 as restitution.  In State v. Moore-Bennett, the court expresses some perplexity as to how the court decided the offense was only a misdemeanor, but concludes that restitution can only be ordered for the misemeanor amount, which is less than $500.  The court thus marks restitution down to $499.99, which sounds like the punch line for dhalf a dozen Jewish jokes I know. 

Excellent opinions in two cases.  In State v. Kartsone, Kartstone and Colacrai are charged with several counts of felonious assault, and Colacrai works out a deal.  At Kartstone's trial, the parties stipulated to the reading of Colacrai's statement.  At the close of all the evidence, the State asked the judge to take jucidial notice of Colacrai's plea of guilty to attempted felonious assault, and immediately before closing arguments, the judge informed the jury of that plea. 

The court first correctly determines that whether the judge took judicial notice is not the key issue; while a court can indeed take judicial notice of its own docket, a co-defendant's guilty plea "is not the type of docket information that a trial court can judicially notice."  The appropriate test, then, is one set forth in a 1989 5th Circuit case:

(1) whether a limiting instruction was given; (2) whether there was a proper purpose in introducing the fact of the guilty plea; (3) whether the plea was improperly emphasized; (4)whether the plea was used as substantive evidence of guilt; and (5) whether the introduction of the plea was invited by defense counsel.

The only "yes" answer is to whether the plea was improperly emphasized:  here (emphasis the court's) "the state strategically mentioned Colacrai’s plea at the end of its rebuttal closing argument to the jury — the very last thing it argued to the jury — when it likely had the most impact."  Correct result, well-written and reasoned opinion; can't ask for anything more.

Ditto for the court's work in State v. AbdulrahmanAfter detecting drugs in a package, the police set up a controlled buy for the delivery location, and arrested the defendant's cousin there.  They found an address to an apartment building on him, and went to that building to find "more evidence of drug activity or proceeds."  After using the keys obtained in the cousin's arrest to enter the lobby, the detective approached Abdulrahman, who'd been identified by the security officer.  The detective questioned him for several minutes, then cuffed him "for my own safety."  Backup arrived, Abdulrahman took them up to the apartment, where a second box was observed; a warrant was obtained, and it was discovered to contain drugs as well.

The trial judge denied the motion to suppress by the cousin, but granted it as to Abdulrahman, writing a thorough opinion which gets extensive quotation by the appellate panel.  The State makes two arguments on appeal, that the stop of Abdulrahman is a "consensual encounter," and that if it isn't, the detention was a valid Terry stop.  The court finds that the consent was "simply a submission to the force and was coerced," and that the knowledge that the police had at that point wasn't sufficient to create a reasonable suspicion of criminal activity on Abdulrahman's part.

The more interesting part of the opinion deals with the concept of inevitable discovery -- that the police still had a valid basis for obtaining a search warrant.  Opinions, actually, because one judge, Sean Gallagher, though concurring in judgment, differs markedly from the other two.  Gallagher argues that only the statements made after Abdulrahman was handcuffed should have been suppressed; prior to that, the encounter was indeed consensual.  At first blush, I agreed with that; one wouldn't have a reasonable expectation of privacy in the lobby of an apartment building.  But a cogent argument to the contrary could be advanced if the apartment building has limited key access.  Gallagher differs on that point, but concludes that although the evidence obtained from the initial questioning of Abdulrahman and the arrest of the cousin gave more than sufficient basis for a warrant, "the unlawful entry into the apartment without a warrant so poisoned the process that the subsequent search cannot be justified."

Actually, the week was probably one of the best for defendants in a long time.  In State v. Tuleta, the defendant is charged with drug possession for various pills for which he has a prescription.  The prescription would be a complete defense, and certainly would warrant Rule 29 acquittal, but court seems to say that pretrial dismissal of indictment is also proper, despite abundant case law that factual issues can't be entertained in pretrial motion to dismiss.  And in two cases, State v. Brunning and State v. Gilbert, the court reverses convictions of failure to register or verify an address; both defendants were declared sex offenders under Megan's law, but were prosecuted after reclassification under the Adam Walsh Act, and you can't do that. 

Brunning was the less fortunate of the pair; his 15-year sentence for convictions for sexual misconduct with a minor and two counts of sexual battery were upheld.  Since the Supreme Court's 2008 decision in State v. Kalish (discussed here), the 8th has been in a quandary as to how much deference to accord the decision, since the court's opinion enjoyed only plurality support.  The Hamlet act on whether Kalish is authoritative or merely persuasive ends with Brunning, the panel declaring that the law in 8th District is that court will analyze a sentence to determine whether it's contrary to law, then whether it's an abuse of discretion, and then conclude that it's neither.  They didn't say that last part, but they might as well have.


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