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What's up in the 8th

If you were in Vegas a while back, and there was a guy at the craps table whispering to the dice, "C'mon, Daddy needs a good lawyer," it might have been Bakari Ajumu; the court's opinion in State v. Ajumu notes that, after stabbing his girlfriend's ex to death, "he fled to Nevada for two months under an alias, ostensibly to raise money to mount a criminal defense."  Not a good enough one; the court affirms his conviction, though not without chiding the prosecutor for what it found to be "blatant misconduct."

Two instances of it, actually, but of the same type.  During direct examination of the girlfriend, the prosecutor asked if she knew anything about Ajumu's background, and then "did you have any information that he spent time in prison?"  During the direct of the detective, the prosecutor asked the detective did he, during the course of his investigation, "make a determination as to whether the defendant had a criminal history?"  Even the State acknowledged that this constituted misconduct, and the court condemns it "in the strongest terms."  Strongest?  Well, not quite; the strongest would be a reversal.  Ajumu, though, was claiming self-defense, and he was the only person who could have offered key evidence on the issue; thus, he would have had to (and did) testify, so his prior record would have come out anyway. 

Harmless error also rescues the prosecutor in State v. HillAnother Trouble in Love story; Hill had gone to the victim's house to talk to his ex-girlfriend, and things got ugly, so the victim told Hill she was calling the cops.   He pulled a gun and threatened to kill her if she did, then quickly left.

Hill's argument was that he'd been invited in, and hadn't been told to leave, so he wasn't trespassing, which was an essential element for the aggravated burglary charge.  Not so, countered the prosecutor, asserting no fewer than eight times in closing argument that the girlfriend and victim had indeed told Hill to leave.  Problem:  the evidence clearly showed this wasn't the case.  Had it not been for "the overwhelming proof of guilt in this matter, this repeated mischaracterization would have constituted plain and prejudicial error."  That's a nice quote to keep handy:  it basically holds that, even without objection, repeated misstatements of the evidence by a prosecutor in closing argument will result in reversal.  Don't get your hopes up, but that's what it says.

But how could it have been harmless, you say; what about the trespassing argument?  Not going anywhere; the law is that the trespass can occur even if the defendant forms the intent to commit the offense after he's entered the premises, and the court further holds that when the defendant commits an act of violence against the homeowner, the privilege for the defendant to be there is immediately revoked, without the need for the owner to expressly do so.

The 8th builds on its reputation as the most AWA-hostile court in the state with its decision in State v. Ortega-Martinez.  The defendant had been convicted of statutory rape in Tennessee in 2002 and classified there as a sexual offender, then moved to Ohio after his release from prison.  By virtue of the law, he became a sexually oriented offender, and was required to register annually for ten years.  When the Adam Walsh Act went into effect, Ortega-Martinez received notice that he'd been reclassified as a Tier II Offender, upping his registration requirements to twice a year for 25 years.  He filed a motion to dismiss the indictment, which the trial judge granted.

The Supreme Court had held the reclassification scheme unconstitutional as a violation of separation of powers in State v. Bodyke, but the State argues on appeal that Bodyke doesn't apply to out-of-state offenders.  The panel claims it had considered the very same issue last year in Majewski v. State and decided against the State.  What's more, the State had appealed to the Supreme Court, which had denied jurisdiction, so that's that.

Well, not quite.  In Majewski, the defendant had filed a petition objecting to his reclassification, which was denied by the trial court on the belief that the AWA was constitutional.  A few weeks before the appeal was handed down, Bodyke was decided, and the 8th relied on that to reverse.  Nor did the State argue the "out-of-state" classification in its appeal to the Supreme Court; it simply contended that Bodyke didn't apply because there had been no prior trial court order classifying Majewski as a sexual offender; his classification arose by operation of law when he moved here after being classified as a sexual offender in Hawaii for an offense there.

The issue in Ortega-Martinez, though, isn't really whether Bodyke applies to out-of-state orders classifying defendants as sexual offenders.  The Tennessee court's order didn't impose any registration obligations upon Ortega-Martinez here in Ohio; those duties were imposed by operation of law when he moved here.  The real argument is whether Bodyke applies when there is actually no judicial order which is being changed.  In a nutshell, Bodyke says the AWA violated the separation of powers doctrine because it allowed the Attorney General to change a court order. As I explained in a post last year, though, the 1st and 12th Districts have taken the position that when there is no actual court order -- the classification arose through operation of law -- Bodyke doesn't apply.  That's one of the issues that still remains unresolved, although it certainly is in the 8th. 

Ortega-Martinez also points the way to resolving such issues without trial.  The State's appeal claimed that the trial court erred by dismissing the indictment, because it was valid on its face.  The panel acknowledges that the sufficiency of evidence to support the indictment can't be challenged in a pretrial motion, but there's an exception:  where "the motion did not embrace what would be the general issue at trial."  Here, the general issue at trial is whether Ortega-Martinez committed a violation; the issue raised by the motion was the constitutionality of his reclassification.

Finally, in State v. Essa the court writes coda to the saga of the Cleveland physician who was accused of killing his wife by putting cyanide in her calcium pills, and shortly thereafter fled to Cyprus.  (One of the issues raised on appeal was whether Essa was entitled to jail-time credit for the three years he spent in a Cypriot jail fighting extradition.  That's a no.)  Any suspense as to the outcome of Essa's trial dissipated when the State paraded a bevy of witnesses, including Essa's own brother, to the stand to testify that Essa had bragged to them about killing his wife.  His lack of discretion apparently was not a recent development; the appeal also assigns as error the introduction of evidence at trial that, as a result of numerous affairs, Essa developed venereal disease and gave it to his wife.  This reminded me of a line from Jim Bouton's Ball Four, in which he described a questionnaire given to the players by Major League Baseball, one of the questions being, "What's the hardest thing you've ever had to do as a baseball player?"  One responded, "Explaining to my wife why she has to take a penicillin shot for my kidney infection."

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