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Case Update - Tanned, Rested & Ready Edition

Yes, I'm back, avec bitchin' tan.  Well, maybe not that bitchin'.  More color than I normally have, but that's not saying much, considering  there are vampires who get more sun than I do.

Down in DC, nothing yet from the Court, hardly surprising considering that the current term began only a month ago.  In fact, there were no oral arguments while I was away, but the pace will be picking up in the next few weeks, with arguments scheduled this week in two cases involving ineffective assistance in plea bargaining (Monday), in the case on eyewitness identification, which I previewed here (Tuesday), and the big one on GPS devices and searches (next Tuesday).  I'll have more on those after the arguments.  Viewer discretion is advised.

In Columbus, three weeks have seen no significant decisions, except for State v. Lester, which I previewed here.  As I'd predicted -- in fact, as anyone who saw the oral argument and hadn't flatlined their last EEG could have predicted -- the court ruled in favor of the state, but by a narrower vote than I'd figured.  A closer look at the opinion, though, which I'll discuss on Wednesday, shows that it really wasn't that close.

Now, with a couple hundred or so appellate cases to wade through, let's get to those...

There are any number of cases holding that showups -- showing a suspect individually to a victim -- are inherently suggestive, but precious few which have found that sufficient to justify suppressing the identification.  The 6th District's decision in State v. Hakim does not add to the latter list, the court specifically noting that an identification from a showup conducted within a very short time after the crime is much more likely to be valid... In State v. Alltop, the 2nd District reaffirms a decision from last year holding that the increased penalties under the Adam Walsh for a sex offender's failure to notify or verify an address cannot be applied to Megan's Law offenders... Two cases on conflicts of interest:  in State v. Ramey, the 2nd District rejects a claim based on the defense lawyer's prior job as a prosecutor, and his friendship with the attorney presently prosecuting his client; in State v. Redding, the 8th District comes to a similar result where the defense attorney had represented the victim's brother in a  misdemeanor case two years earlier...

A perhaps decent defense to a concealed carry charge goes by the wayside in the 6th District's decision in State v. TaylorAfter Taylor was arrested for drunk driving, an inventory search discovered a gun under the passenger seat, in a computer bag and wrapped in a plastic grocery bag.  Taylor argues that this prevented it from being "ready at hand," but he'd pled no contest to the charge.  That means he'd admitted to the elements alleged in the indictment, including the "ready at hand" element... A somewhat surprising case from the 8th District in Strongsville v. Feliciano, where the court holds that the trial judge abused her discretion in ordering random drug and alcohol testing for a defendant who had pled guilty to misdemeanor domestic violence, because the testing did not "bear any relationship to the crime for which appellant was convicted.  The record before us is utterly lacking any mention of drugs or alcohol having been involved in the incident for which appellant was convicted."  Random drug testing is a condition of probation in every felony case handled by the Common Pleas court here, so we'll see how much play Feliciano gets there... Didn't we cover this in law school?  In State v. Yambrisak, the State filed a motion for a show cause hearing, alleging that defendant had violated a protection order.  At the hearing, the State called the defendant as a witness -- in fact, he was the only witness -- and the court denied his effort to invoke his 5th Amendment rights and ordered him to testify, then imposed a 30-day jail sentence.  That's criminal, not civil, contempt, and the defendant had the right against self-crimination, the 5th District held, reversing the judgment...

Trial court could order restitution for lost wages based solely on victim's testimony, which did not have to be substantiated by pay stubs or tax records, says the 1st District in State v. Sexton... The trial judge's misrepresentation at the plea hearing of defendant's eligibility for judicial release voided the plea, the 6th District rules in State v. Oliver... The 1st District holds that evidence showing that defendant groomed young boys into sexual partners was admissible under EvidR 404(B) in State v. Short... An air pistol used in a robbery constituted a "deadly weapon," the 10th District concludes in State v. Mann; even if it was incapable of firing a bullet, it could be used as a bludgeon... The 4th District affirms the defendant's convictions for breaking and entering and possession of criminal tools, rejecting his claim of allied offenses, in State v. Humphrey; the court finds that there was insufficient evidence in the record to determine the issue, and that the defendant had the duty of creating a record to support his claim...

Another good sentencing decision from the 2nd District in State v. Murphy, reversing maximum, consecutive sentences for burglary and breaking.  The trial judge had rejected the State's recommendation of probation, noting that the defendant had a ninth grade education and was paying little in child support, thereby letting the community support his children while he was out committing crimes.  The court found this to be "clearly improper" consideration of factors extraneous to determining an appropriate sentence.

That's all well and good, but it leads to an interesting anomaly:  the more a judge says in explaining a particular sentence, the more likely he is to have the sentence reversed.  Had the judge given maximum consecutive sentences without saying a word, the court would have "presumed" that the judge had considered the appropriate sentencing factors, and that would have been that.

Trying to save trees, I guess.  On September 4, 2009, Frankie Mosley robbed and shot Larry Frazier.  About two weeks later, he used a gun to steal a car, and then shot at the police when they tried to apprehend him.  The two cases were tried together, and Mosley was convicted of attempted murder, felonious assault on a police officer, a couple counts of aggravated robbery, and a few other charges and specifications, apparently enough to arrive at a sentence of -- wait for it -- 102 years.  The major issue, of course, is the joinder of the two charges, and the 10th District, in State v. Mosley, spends a whopping four paragraphs finding that it was proper.  Actually, one; after devoting three paragraphs to a recitation of the facts, the court's entire analysis of the joinder issue consists of the following:

The two incidents were sufficiently similar and sufficiently linked so as to make their joinder for trial appropriate. We are bound by the rulings of the Supreme Court of Ohio on this issue and that court has consistently favored joinder of similar cases for trial.  See for instance, State v. Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288.

It could be that Mosley was the Worst Person in the World, but if he's going to spend the rest of his life in prison -- and let's face it, he is -- I think you owe him more than that.


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