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What's Up in the 8th

This week, we find out how easy it is to commit the crime of kidnapping.  (Domestic violence isn't hard, either.)  We learn when to raise an argument, and when not to.  We come across a case where the 8th absolutely nails a Crawford issue.  And, not for the first time, a defendant tests our credulity.

Darren Woodson and Roychemere Bolling have women problems, and attempt to resolve them in similar ways.  Bolling confronted his girlfriend, upset that she'd talked to an ex-boyfriend at a bar, and, when she tried to walk away, grabbed her by the scarf.  Bolling challenges the evidence for his conviction for domestic violence, given that the victim testified that she wasn't hurt, but the court in State v. Bolling  notes that the victim testified that she'd had to put her hand between the scarf and her neck to keep from being choked, and Bolling had made a threat of killing her.  That's more than sufficient proof of domestic violence, which requires the defendant to "cause or attempt to cause harm."  Unfortunately, the court sticks in a quote from a 9th District decision to the effect that “[a] defendant may be found guilty of domestic violence even if the victim sustains only minor injuries, or sustains no injury at all."  That's a bit broad; the case relied upon by the 9th, like Bolling, deals with the attempt to cause physical harm.  "Physical harm" is defined by statute as an injury, so conviction of domestic violence requires either an injury or an attempt to cause one.

The defendant in State v. Woodson skips the scarf, and gets right down to it by attempting to choke his ex-girlfriend, first in a car and then in the house after he chases her there.  Convicted of kidnapping and domestic violence, he argues evidence of the former is insufficient.  Not so; the statute proscribes restraining the liberty of another person, which means "to limit one’s freedom of movement in any fashion for any period of time. . . The restraint need not be actual confinement, but may be merely compelling the victim to stay where he is."  That's a very broad reading of the kidnapping statute, but one which is supported by the legislative history and the case law.  Interestingly, an argument could be made that the domestic violence and kidnapping were allied offenses, but it's raised neither by the appeal nor the panel.

Ineffective assistance claims are featured in two cases.  In State v. Collier, the defendant complains that his 8-year sentence for child pornography resulted from his lawyer's failure to file a sentencing memorandum.  Most IAC claims revolve around the second prong of the Strickland test, whether the defendant has been prejudiced by counsel's failure, but here it's the first prong that creates the problem:  is counsel's performance deficient because he fails to file a sentencing memorandum?  Not so, says the court; "the filing of sentencing memoranda is the exception rather than the rule -- the vast majority of defense attorneys choose to forego a sentencing memorandum and speak directly to the court at sentencing."  Since there is no duty to file one, counsel's performance isn't deficient. 

There's no question that if the allegations regarding trial counsel in State v. Presnell are true, his performance was deficient; Presnell argues that his plea was involuntary because his attorney's "severe mental illness and addictions" made the attorney unwilling to go to trial.  Certainly interesting (and we'll take a brief time-out here while every Cuyahoga County lawyer who's reading this scurries off to check the court docket to see who we're talking about), but the problem is that the evidence supporting the claim is attached to the appellate brief, and the court can't considerit; the appropriate course would be a petition for post-conviction relief in the trial court, where a full record can be made.  The court hints at the problem here:  "Presnell makes no argument as to how his attorney’s purported issues affected the voluntariness of his plea or that the issues caused him to enter into his plea unknowingly."  Stay tuned.

While Presnell is in too much of a hurry to raise an issue, the prosecutor in State v. Zaslov makes the mistake of not raising one he should.  Zaslov's conviction for swindling $500,000 had been affirmed earlier, but the 8th had remanded the case back to the trial court for resentencing on two counts.  At the resentencing, Zaslov moved to withdraw his plea, which was denied, and he appealed that.  There's about eight gazillion cases holding that if a case is remanded back to the trial court on sentencing issues, it can't entertain a motion to withdraw the plea, because the defendant could've raised that in the initial appeal, so it's res judicata.  And we would have had eight gazillion and one decisions to that effect, except that the State never raised it.  No matter; the court affirms on the basis that the trial court didn't abuse its discretion in denying the motion to vacate.

An Crawford issue arises in State v. WorleyWorley is charged with shooting two people, and the cops testify that one person told them that Worley was at the scene, and Worley's co-defendant gave an account "consistent" with what the police knew about the shooting.  Neither the informer or the co-defendant actually testify at Worley's trial, and the appellate panel notes that introducing testimony about what other people said, when those people don't show up and testify themselves, is generally frowned upon.  In fact, there's no hearsay exception which would cover this, but I'm guessing that the judge let it in under the "investigative" exception to the hearsay rule.  (There is no such thing, you say?  There is here.)  That "exception," though, doesn't cover the Crawford problem:  the statements are clearly testimonial.  The panel does an excellent job reviewing the appropriate law, especially the "primary purpose" test articulated in Davis v. Washington and earlier this year in Michigan v. Bryant (the latter case discussed here).  Interestingly, the panel cites only 8th District cases on the issue, but gets the call right:  there was no ongoing emergency at the time the statements were made, so they should've been excluded.

Finally, a shout-out to the defendant in State v. Duncan for creativity.  Charged with gross sexual imposition of a friend's 16-year-old daughter, the most damning evidence against him was his DNA, found on her breast, allegedly where he had kissed her.  The panel's description of Duncan's version of the events merits full quotation:

According to Duncan, K.M. called him and told him to come to her room. He thought something might be wrong, so he went.  When he got to her room, she was lying naked in her bed.  Duncan said he was “shocked,” and left her room immediately. K.M. chased after him with a blanket wrapped around her.  Duncan said that K.M. tripped over the blanket, and as she was falling, he caught her.  The blanket had fallen off of her at that point, and she was naked. Duncan explained that K.M. was trying to “gather herself” and grab her blanket, and Duncan sneezed on the left side of her body due to a “strong fragrance” that K.M. was wearing.

I had a client give me a similarly tortured rendition of how he got into trouble one time, and all I could do was look at him and say, "Would you really want to be represented by a lawyer who was dumb enough to believe that?


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