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What's Up in the 8th

I've written before of the various approaches to appellate practice, one being that you winnow your arguments down to the best ones and go with those, the other that you throw every conceivable claim out there and hope you hit paydirt.  I generally tend toward the former approach, but the nice thing about the latter is that it can provide you with a good bit of legal education in a single case.

Take State v. Sekic, which alerts us to its potential as a future Jerry Springer episode in the first line of the opinion's factual recitation:  "Mrs. Sekic’s stepbrother, Kristopher Ford, was banned from the Sekic household for stealing Christmas gifts from the Sekics’ children."  The bad blood intensified over time, leading to a shouting match at a convenience store, followed by Sekic, his father, and his sister driving to the Fords' apartment.  From there, the court notes, "the stories significantly diverge."  They arrive at the same ending, however, with Ford suffering "significant injury" from being hit on the head with a ceramic flowerpot.

Sekic's chief claim on appeal from his felonious assault conviction is that the judge erred in refusing to charge on self-defense.  Even if one believed Sekic's claim that Ford threw the first punch on the porch, though, Sekic created the situation by going to the Fords' apartment.   As the court puts it, in a nice turn of phrase, "Having willingly advanced toward a volatile situation, where he already thought the others would harm him, he cannot rely on the affirmative defense of self-defense when the others actually do that which he feared."

But there's more.  Sekic put his wife on the stand to testify about his peaceful nature, only to have the prosecutor cross-examine her on the police report filed two years earlier in which she claimed that Sekic threatened to kill her.  Sekic claims that this is impermissible 404(B) "other acts" testimony, but it's not.  Once you put character in issue, the witness can be cross-examined with specific instances of conduct under 405(A), and that's what happened here.  Sekic does win a partial victory on a restitution issue, the court finding that the trial judge erred in ordering an amount without conducting a hearing.

The defendant in State v. Parra gets a partial W, too:  his conviction for a 3rd degree felony possession and trafficking in Ecstasy is reduced to a 4th degree, which is a fairly big deal:  the former contains a mandatory term.  The problem was that Parra was charged with possessing more than bulk but less than five times bulk of the drug, and the judge never told the jury what the "bulk amount" was.  Even though the cops did, that's not good enough.

The more interesting argument concerned the tampering with evidence charge.  The indictment contained no "to-wit" specification as to what was tampered with, but the prosecution focused its evidence on two items:  a cell phone taken from the victim, then smashed, and a gun hidden behind a fence.  Parra argued this posed the danger that a jury would not arrive at a unanimous verdict as to which item was in fact the subject of the tampering:  six could believe it was the phone but not the gun, six could believe it was the gun but not the phone, and Parra could still be convicted, despite the fact that only half the jury agreed on his guilt.  Too bad; as the court notes, the right to a unanimous verdict does not include the right to a unanimous theory on what conduct supports the verdict.  Burglary requires proof of entry through force, stealth, or deception, but that doesn't mean the jury has to unanimously agree on which of those you used.

Again, there's more.  Parra was also the passenger in a stolen car, and charged with receiving stolen property.  Apparently, the prosecutor's office ran out of subpoena forms, so instead of bringing in the owner of the car to testify that it had been stolen, the State put on a police officer to testify that a computer printout showed the car to be reported stolen.  That doesn't cut it, and Parra's conviction for that is vacated, but he loses his last two issues:  a conviction for having a weapon under disability isn't inconsistent with an acquittal for the firearms specification; and the quantum of proof necessary for a forfeiture specification is a preponderance of the evidence, not proof beyond a reasonable doubt.

State v. Walker presents another appeal from a denial of a motion to withdraw a plea, and meets the customary sad fate of such appeals.  The court, though, adds another factor into the mix:  if the defendant made his decision to enter guilty plea after the case had been pending for a considerable time and the parties were ready for trial, "a court certainly acts within its discretion to include such a circumstance in its subsequent consideration of the genuineness of the defendant’s motion to withdraw his guilty plea."  Considering that Monica Lewinsky was but a gleam in Bill Clinton's eye the last time a denial of motion to withdraw plea was reversed on appeal, coming up with additional reasons to deny them is sort of like spending more time figuring out reasons to hate Casey Anthony.

A variety of civil cases.  In Sanford v. 202 Racing Inc., the plaintiff seeks to enforce a foreign judgment rendered in a Texas court; the panel kicks it out, providing an excellent discussion on personal jurisdiction.  In the Star Wars-sounding case of Tarquinio v. Estate of Zadnik, the plaintiff's attorney learns to his chagrin that if his case is dismissed with prejudice because he  didn't do what the trial court says he must -- show up at pretrials, respond to discovery -- the appellate court isn't going to bail him out.  And the plaintiff in Bzdafka v. Bretz gets a do-over:  she'd claimed $51,000 in medicals as a result of a fender-bender, and the jury gave her $8,000.  The defense had cross-examined her with her chiropractor's records <your chiropractor joke here>*, but then moved to admit the records, which the judge did over objection.  The judge later realized her error -- the records had never been authenticated -- and granted a new trial, which the court affirms.

One more note here.  In Branch v. Cleveland Clinic Foundation, the court deals with a complicated medical malpractice case.  How complicated?  It involved dystonia, and for treatment,

the neurosurgeon must access the globus pallidus internus (GPI), the area of the brain responsible for sending the abnormal impulses that cause the dystonia, and place bilateral electrodes on both sides of the GPI. After the electrodes have been successfully planted, they are programmed to send impulses that relieve the dystonia.

I've criticized the court on occasion, but I deal almost exclusively with criminal issues.  The court does not.  The opinion in Branch spends 22 pages delving into the issues common to medical malpractice cases -- informed consent, "different methods" -- as well as a bevy of evidentiary and procedural issues, finding for the defendant on some, for the plaintiff on others, and ultimately reversing.  A fine job, and doubly impressive considering that the judge who authored the opinion was on the municipal bench just seven months ago.

* My chiropractor joke:  Q.  How many chiropractors does it take to change a light bulb?  A.  One, but he has to come 25 times.

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