What's Up in the 8th
Sometimes it's easy doing the weekly summary of the 8th District's cases: short opinions, each clearly enunciating some principle of law. Sometimes it's not so easy, as when I pull up an opinion and the page bar tells me this is page 1 of 20. Or 32. Or 45. There were one of each of those last week, the baker's dozen of criminal cases totaling 221 pages.
And it was all utterly fascinating. Really. No, really.
Take State v. Santiago, for example. The defendant is charged with attempted murder and felonious assault, and the story of how this came to be is somewhat convoluted, as evinced by footnote 1 of court's opinion: "Hazel, a transgendered individual, is identified in the transcript as Felix Quinones." The primary issue revolves around the trial judge's instruction on flight, which charges the jury that if it finds the defendant fled from the scene, that might indicate consciousness of guilt, and can be taken into consideration. Good news here; some decisions on the subject seem to hold that an instruction is warranted if the defendant does not hang around the crime scene to welcome the investigating detectives, but the court notes that a flight instruction isn't warranted in those circumstances: "mere departure from the scene of the crime is not to be confused with a deliberate flight from the area in which the suspect is normally to be found." Bad news for Santiago, though; the court rejects his contention that the jury should have been instructed that if it found Santiago left the scene for reasons other than consciousness of guilt, it shouldn't consider his departure for any purpose.
The court also entices us with a footnote in State v. Rios, mentioning that two of the women witnesses "admitted they met while working at a 'strip bar.'" Unfortunately, this subplot is not developed further, nor is any explanation offered as to why the court felt it necessary to put quotation marks around the term "strip bar." Was it really a strip bar, or merely posing as one? Would unsuspecting patrons be lured into the place by the prospect of seeing nekkid wimmen, only to find that it's really a Chuck E. Cheese? At any rate, there's a lot of story here -- 20 pages of it -- with little payoff: aggravated murder and aggravated burglary are not allied offenses, the court tells us, but we suspected as much all along.
Another contribution to the overworked "baby mama drama" genre awaits us in Cleveland Heights v. Lynch, where the defendant is charged with assault and convicted of disorderly conduct for a hair-pulling bout with her child's step-mother. (If the two worked in a strip bar, real or feigned, the opinion does not mention it.) Lynch's first claim is that the trial court shouldn't have charged on disorderly conduct, an allegation complicated by the fact that it was her attorney who requested the trial court to do so. The panel decides it must review this for plain error, since there was no objection to the charge, ignoring the easier route of rejecting the whole thing as invited error. It comes to the right result nonetheless, finding that disorderly conduct is a lesser included offense of assault. The second claimed error is more interesting: Lynch argues the trial court should've charged on the affirmative defense of mutual combat. The court researches the case law, and decides that there is no such thing. And they're right, at least in this context; mutual combat can serve as an affirmative defense in a civil claim for assault, but only goes to mitigation of damages.
The 8th's magnum opus for the week, though, is State v. Monroe, the majority and dissenting opinions clocking in at a hefty 45 pages. The case demonstrates the evanescent nature of the concept of harmless error. The only evidence of Monroe's guilt of murder was the eyewitness testimony of four witnesses. Two, Milton and Raymond, did not have their faculties about them at the time, to say the least; each indicated to having consumed 16 to 18 beers and two to eight shots of hard liquor, as well as cocaine. Not surprisingly, then, Raymond "could only describe the shooter's body type as being between thin and real heavy" -- thanks, that narrows it down -- and Milton failed to identify the defendant as the shooter in a cold stand conducted shortly after the incident.
The two other witnesses, Dan and Crystal, upstairs neighbors of Monroe, were sober, and were definitive in their identification of him. However, they placed him about 50 feet away from where Milton and Raymond put him, and despite their condition, the latter seem to have had it right: that's where the police found the shell casings, too. And Dan and Crystal's testimony was so shot through with contradictions in what they'd told the police at various times, and the evidence so clear that they were harboring a grudge against Monroe for other incidents, that the judge who first heard the case vacated Monroe's murder conviction and granted him a new trial, finding that the couple's testimony was flatly unworthy of belief.
Monroe fared only slightly better in the second go-around, this time being convicted of voluntary manslaughter, and the majority finds no real problem with the same evidence, finding "substantial evidence in the record that supports the guilty verdict." That's too much for the dissenting judge, whose best point is the trial court's admission of 911 tapes that were made by Dan's father, who hadn't even been present. (Dan had called his father and told him to contact 911). The father pretended to be Dan in the first call, then admitted in subsequent messages that he wasn't, and was merely relaying what Dan had told him. The majority shrugs this off, noting that the messages were substantially the same as Dan's trial testimony, but the dissent points out that the admission of the calls allowed the jury to hear the father repeatedly tell 911 how deathly afraid his son was of Monroe.
The dissent also argues that the jury should not have been instructed on voluntary manslaughter, despite her acknowledgment that if the case were reversed for this reason, Monroe would have to face a new trial for murder. I thought this was wrong at first -- normally, conviction of a lesser included offense bars retrial of the greater, because conviction of the lesser is an implicit acquittal of the greater. But, as the judge notes, voluntary manslaughter isn't a lesser included offense of murder, it's an inferior degree or murder: the jury has to find all the elements of murder, and then additionally find that the defendant acted under provocation. The dissent makes a cogent argument that no charge on voluntary manslaughter should have been given; while there was evidence of an argument between the victim and the killer, words alone can't constitute reasonable provocation. Still, it's hard to see how Monroe was prejudiced by this; it seems clear that had the jury not had the opportunity to convict of voluntary manslaughter, it would have convicted on murder, since, as noted, it had to find all the elements of murder in order to convict of the lesser -- oops, sorry -- inferior offense.
But perhaps the most interesting issue is one that doesn't get much play: the assistant coroner who'd done the original autopsy wasn't around by the time of Monroe's second trial, and so the county coroner, who'd had nothing to do with the autopsy, testified in his place. That's precisely the scenario that I raised in my post about Bullcoming v. New Mexico, the Supreme Court's latest decision on the Crawford theory of the Confrontation Clause, and we'll talk about it in more detail tomorrow.