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What's up in the 8th

The devil is in the details, the saying goes, and the details of verdict forms and plea hearings are highlighted in a couple of decisions this week.  And attention to detail also applies to defendants, as the defendant in State v. Grant learns.  He argued that his appeal should be reopened because his appellate counsel was ineffective for not raising issues like insufficiency and manifest weight of the evidence, but the court gently reminds him that it would have been hard to raise those issues, what with him having pled guilty and there not even being a trial.

Twenty-five years of prison sentences walk out the door in State v. Schmick and State v. BrooksI've commented before about how much I dislike judges reading the rights off a card during a plea hearing, but the superiority of that method is proven once more in Schmick, where a seventeen-year sentence for child pornography gets vacated because the judge forgot to tell the defendant about his right of self-incrimination during the plea.  There are some things you can screw up during a plea and get away with it, like post-release controls or fines, because those failures are determined by the "substantial compliance" test:  would the defendant have entered the plea if he'd been correctly informed, with the customary answer being a resounding "yes."  But advice on constitutional rights requires strict compliance, and if you miss one, the case is coming back.

The failure in Brooks teaches the value of little things like checking over the verdict forms.  Brooks was charged with helping transport 600 pounds of marijuana, which resulted in convictions for trafficking and possession, both second degree felonies.  Well, they would've been second-degree felonies, except that the verdict form only asked for a determination of guilt or innocence of the counts "as charged in the indictment."  Not good enough.  Four years ago in State v. Pelfrey the Supreme Court held that a verdict form has to specify the degree of the felony or the aggravating circumstance (in this case the weight of the drugs); otherwise it's a conviction of the least serious form of the offense.  In this case, that's a fifth-degree felony, and since Brooks already had served over a year of the eight that the judge gave him, he walks. 

There's another saying, about the best-laid plans, and that plays out in State v. Carney.  Back in November, I told you about an appeal I had from a 24-year sentence in a child porn case, and my master plan on getting the case reversed when the Supreme Court held in State v. Hodge that it was wrong in deciding in State v. Foster to sever the statutory requirement for judicial fact-finding before imposition of consecutive sentences.  Normally that wouldn't matter -- the judge on remand would just say the right things this time around -- but as I breathlessly informed you then, the judge who'd sentenced Carney had subsequently lost her bid for re-election, due to her being under Federal indictment, so I'd get a different, and probably more sympathetic, judge when we came back for resentencing.

Except the Supreme Court didn't decide in State v. Hodge that it had been wrong in State v. Foster.  Well, sort of, but they held that if the legislature wanted to do something about it, it would have to pass the law again.  (Which, if you read my stuff last Thursday, you'd know is in the works.)  So a month ago, we had the oral argument in Carney, which played out as Kabuki theatre -- I spoke my piece, the prosecutor spoke hers, the judges nodded politely, all toward a result as foreordained as a boxing match between Mike Tyson and Rosie O'Donnell.

Hearsay is the issue in two cases, the first being Cleveland v. O'MalleyO'Malley, a corrections officer, was convicted of assaulting an inmate by the name of Hulec.  His main claim on appeal is that the court should have permitted the defense to elicit testimony from the nurse who treated Hulec that another inmate told her that Hulec had informed him that he was trying to "set up" the officers. 

The problems with having A testify as to what B told her C said should be apparent, but the defense tries to invoke the double hearsay exception:  multiple hearsay is admissible if each step falls within some exception to the hearsay rule.  The defense argues that Hudec's statement to the inmate falls under the "state of mind" exception, and the court buys it.  That still leaves the statement from the inmate to the nurse, though.  The defense contends that falls under EvidR 803(1), the "present sense impression" exception, and that's not going anywhere:  the exception plainly requires the statement to be made "immediately" upon perceiving the event, and here the inmate relayed the statement to the nurse several days later.

In State v. Brown, the court tackles the common use of the "police investigation" exception to the hearsay rule.  No such thing, you say?  Well, there is, as embodied in this transcript selection from an appeal I handled:

Q.  Officer, what did you do when you arrived at the scene?

A.  The neighbor, Mrs. Shack, came to me and told me -     

      DEFENSE COUNSEL:  Objection.

      THE COURT:  Sustained.  Rephrase the question.

Q.  What did you learn as a result of your interrogation of Ms. Shack, officer?

A.  I learned that the that she had been present during the altercation between the victim and the defendant, and that - 

       DEFENSE COUNSEL:  Objection, your Honor!

       THE COURT:  He's not saying what she said. He's saying what he learned. Overruled. Proceed.

A.  I learned from Mrs. Shack that the defendant had grabbed the victim and thrown her down.

Pretty much the same thing happened in Brown, with the officer testifying extensively as to what the victim told him about how Brown committed the theft, and the court writes this off as being offered not for its truth, but "to explain how the officer investigated the case."  A much better reason is given as an afterthought:  the victim testified as to making the same statements, and was subject to cross-examination.  That's not to say that anytime a witness testifies, her hearsay statements are also admissible, but since the whole purpose of the hearsay rule is to preclude testimony which isn't subject to cross-examination, when the declarant does appear at trial, it goes a long way to eliminating any prejudicial effect from the admission of out-of-court statements.

Another aspect of the opinion in Brown is more troubling.  The defense lawyer acknowledged that Brown is schizophrenic and has a lengthy "psych record," so one of the assignments is that the trial court erred, and Brown's lawyer failed ot provide effective assistance, by not demanding a competency referral.  The court brushes this aside, finding that there wasn't a "sufficient indicia of incompetence."

The problem I have with this is that the issue at this point isn't whether Brown was competent, but whether he should have been referred for an examination to determine that.  To be sure, the issues somewhat overlap; after all, the refusal of  a trial court to order an examination is reviewed under an abuse of discretion standard, and in order to prove ineffective assistance, the defendant has to show prejudice -- in this case, that he was entitled to an examination.  Still, I'd feel a lot more comfortable with a finding that Brown evinced "sufficient indicia of competence" if that determination was based upon a psychiatric determination and court hearing on that issue, rather than the opinion of the appellate panel.


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