In the spirit of the holidays, the judges gather together, hold hands, sing “Kumbaya,” and render a superb en banc decision on 404(B) evidence.  We’ll talk about that tomorrow.  Some of its other work is, shall we say, less than superb, so let’s get that out of the way.

The 8th has often expressed displeasure at the harshness of Ohio’s expungement laws, and in State v. J.K., decides to do something about it.  The judge had granted expungement without holding  a hearing, and there are any number of cases which say that’s fatal, since the statute specifically requires a hearing.  No matter, says the court; here, the state was arguing only an issue of law — that the crime for which defendant was convicted, attempted arson, is a crime of violence — and that the judge need not hold a hearing in that circumstance.  It relies on a 2nd District case for that conclusion, but the dissent ably points out that the 2nd District isn’t helpful:  there, the court denied defendant’s application without a hearing, but there was no question that his offense wasn’t expungeable, and therefore a hearing was pointless.

Next, the court determines that while arson is unquestionably a crime of violence, “the question we are presented with is whether attempted arson is an offense of violence.”  The court looks to State v. Simon, a Supreme Court case which had held that the defendant wasn’t eligible for expungement because he’d been carrying a weapon at the time of the offense, despite the fact that the reference to the weapon was removed at the plea stage.  Simon teaches that the court must look to the actual underlying factual record, not just what the defendant pled to, so that’s what the majority does.  J.K. was a returning war vet, and helped another vet set fire to the latter’s car for insurance purposes, since the vet didn’t have any income.  The crime was quickly detected, and the court decides this really wasn’t a violent crime after all.  Good result, but the process is somewhat tortuous.

The defendant in State v. Brown isn’t as lucky; convicted of attempted in kidnapping in 1997, she’s since stayed out of trouble and is in fact running her own real estate business, and wants a gun for protection, so she applies for relief from weapons disability.  The judge denies it, nothing “I rarely see a gun do much in a positive sense.”  The judge has since resigned for prosecutor next year; a positive rating by the NRA doesn’t seem to be in the offing.  The court spends more time than necessary deciding that “may grant” means that the judge has discretion to grant relief from disability, so too bad for Ms. Brown.

Three decisions in search cases.  In State v. Ware, the police approach Ware, who’s sitting in a parked car, and tell him not to leave; he does anyway, speeding off.  He’s convicted of failure to comply, and argues that his motion to suppress should have been granted because the police didn’t have reasonable cause to tell him not to leave.  The court decides otherwise, but I was left wondering, what’s to suppress?  Even assuming that the lack of suspicion or probable cause or whatever rendered Ware’s arrest illegal, the illegality of the arrest itself doesn’t exempt Ware from prosecution, it simply precludes admission at trial of any evidence found or statement made by Ware, of which there was none.

State v. Freeman is one of the more troubling 4th Amendment decisions to emerge from the 8th in recent years.  The cops had set up a controlled buy of drugs from Freeman’s house, and as Freeman let the informant out the door, he saw cops standing on the porch.  He immediately shut the door, and the cops heard “flush it!” over the wire the informant was carrying, so they broke through a window and arrested Freeman, finding drugs in plain view.  The State argued exigent circumstances.  The law is that the State can’t rely on that when they are the ones who create the exigency, but the court finds that they didn’t here.

The US Supreme Court addressed this precise question earlier this year in Kentucky v. King.  In King (discussed here), police had knocked on the door to an apartment, believing that their suspect had fled there, and, when they heard noises which they believed were the people inside destroying evidence, they broke down the door.  Wrong door, it turns out; the suspect wasn’t there, but drugs were, and the Court held that didn’t matter:  the police, by knocking on the door, were simply doing what anybody else might have, and since their conduct was “reasonable,” it couldn’t be said to have created the exigency.

The circumstances here are a harder sell than the ones in King. There you had police in an emergency situation (they were chasing the suspect), here you had police knowing full well that a controlled buy was set up.  There, you had police knocking on the door, here you had police gathered on a porch.  One might possibly shoehorn this case into King’s parameters, but the court makes no effort to do so; King isn’t even mentioned.

That’s balanced out in State v. McGowan, where the State loses one it probably should have won.  The cops investigate a complaint of drug activity in front of an apartment building, and see a group of people huddled in doorway.  Two of them run inside building, and the cops testify they can see them run up the stairwell (which is visible through windows) and into a 2nd-floor apartment.  Long story short, they go to the apartment, are allowed in, see one of the guys who ran away, he makes furtive gestures, they pat him down and find dope.  The judge isn’t buying, though, concluding that the police had the wrong guy.  The court affirms, with misgivings; despite “significant testimony to the contrary,” the court must defer to the judge’s findings of fact.  The moral of this story is what’s sauce for the goose…  I can’t tell you how many court opinions I’ve read where the police officer’s testimony is patently unbelievable, but because the trial judge bought it, the appellate court is bound to do the same.

And the moral of State v. DeJarnette is that you can be too clever.  In his closing argument, defense counsel told the jury that “we didn’t hear anything about a criminal record of the defendant.”  Probably because the defendant didn’t take the stand; note the absence of a more positive declaration, such as “the defendant doesn’t have a criminal record.”  The prosecutor was then allowed to tell the jury that “certain things are kept from a jury, and one of those things is any criminal record of the defendant.”  DeJarnette complains that this is misconduct, but the court properly notes that it’s said that the prosecution “should avoid insinuations and assertions which are calculated to mislead the jury,” and there’s no reason the same rule shouldn’t apply to defense counsel.