All eyes -- well, mine, anyway -- are focused on SCOTUS this week, not in anticipation of any decisions, but for the oral argument in the GPS case. As I've mentioned, while the case originally offered the question of whether use of the device to monitor the defendant's movements violated his 4th Amendment rights, the Court ordered briefing on an additional issue: whether placement of the device in the first instance constituted a search or seizure.
There was another big case argued last week in DC, Perry v. New Hampshire, which I previewed here. Perry's claim was that unreliable identification testimimony is a due process violation, even in the absence of any police conduct contributing to a suggestive pretrial identification. That's a tough argument. Most of the effort of the American justice system is concentrated in ensuring that the procedure is fair, not that the outcome is correct. For example, a defendant is guaranteed the right to confrontation to determine the reliability of evidence; he is not guaranteed that the evidence will in fact be reliable. If a defendant has a due process right to the exclusion of unreliable identification testimony, how do we go about determining whether it is in fact unreliable? And shouldn't that be extended to prohibit other types of evidence which might be deemed unreliable? Perry's argument found no notable takers on the Court, and more than enough critics to safely predict it rejection.
Down in Columbus, no decisions either. There were several oral arguments, including State v. Morris, which I discussed last week, and State v. Hood. The latter involves the question of whether the defendant's right to confrontation was violated by the police officer's testimony about cell phone records, in the absence of anyone from the cell phone company coming in and authenticating the records. The most unusual aspect of the case is that the court took the case at all; the 8th Amendment affirmed Hood's conviction without addressing the issue, holding that even if it did violate his 6th Amendment right, it was harmless beyond a reasonable doubt. To provide any relief to Hood, the Supreme Court would both have to rule in his favor and conclude that the appellate court was wrong in its application of the harmless error standard. To be sure, the dissenting opinion in the 8th District's decision raised substantial question as to whether the majority was correct in determining whether the error was harmless, but the Supreme Court almost never reviews those determinations.
On to the courts of appeals...
In State v. O'Neill, the defendant, while driving drunk, hit a motorcyle, killing the driver and injuring the passenger. The 6th District upholds separate convictions for aggravated vehicular homicide and aggravated vehicular assault, but finds that the OVI conviction should have merged. No objection was raised in the trial court, so the 6th District reviews it for plain error, but this doesn't really matter; the Supreme Court has held that it's plain error to give a defendant separate sentences on convictions which should have been merged... In State v. Burrell, the defendant rents out property which belongs to someone else. He defends against the theft charge by claiming that the other person doesn't really own it, either, because she's in bankruptcy. Doesn't matter, says the 8th District: "the gist of the theft offense is the wrongful taking by the defendant, not the particular ownership of the property"...
The 9th District reverses the defendant's conviction for intimidation of a crime victim, finding in State v. Wimley that although an investigation into a crime may have begun, there was no showing that a formal criminal proceeding had been initiated, and that was required. Last year, in State v. Muniz, the 8th District went even further and concluded that an indictment for intimidation of a crime victim had to include information regarding the pending underlying case, but last week in State v. DeJarnette holds that this doesn't apply to an indictment for intimidation of a witness... If the spouse is the victim of the crime, it's not necessary to inform her before she testifies of her right to invoke spousal privilege and refuse, the 12th District notes in State v. Jackson...
Big decision from the 2nd District. As I wrote back in August, the 2nd District has formulated an unfortunate rule that a person who has an outstanding warrant "has no reasonable expectation of privacy to be free from arrest and search by the police." This week, in State v. Gardner, the 2nd essentially abrogated that rule. Basically, if the warrant was discovered as a result of an unlawful stop or seizure (unless its discovery was unconnected to and attenuated from the illegality), then any evidence seized in the search incident to the arrest must be suppressed."
Nice try. Some creative thinking in State v. Dingess, where the defendant argued that he was denied his right to fair trial because the State stacked its evidence on the counsel table, within view of the jurors, prior to opening statements. Creative thinking gets you only so far, though; the 10th rejects his contention that "this action unlawfully encroached upon his presumption of innocence."
Huh? I discussed last week the oral argument before the Supreme Court in State v. Morris, the 9th District decision which held that admission of 404(B) evidence was to be reviewed de novo by the appellate court, rather than for abuse of discretion. I mentioned that no one on the Supreme Court seemed to even countenance the idea that de novo review was appropriate. The 9th must have come to the same conclusion I did about the argument: in State v. Gates, it spends two paragraphs explaining how admission of 404(B) evidence "lies within the broad discretion of the trial court," and that "a reviewing court's inquiry is confined to determining whether the trial court acted unreasonably, arbitrarily, or unconscionably." The opinion never mentions Morris.