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What's Up in the 8th

There's a common perception that fingerprint evidence is infallible.  Brandon Mayfield would beg to disagree.  After the Madrid subway bombings in Spain in 2004, police found a fingerprint on a bag of detonators near one of the sites.  Three separate FBI fingerprint examiners matched them with fingerpints belonging to Mayfield, a lawyer in Portland, Oregon, and a court-appointed expert agreed.  The FBI arrested him and held him as a material witness for two weeks.  At that point, everybody realized he was the wrong guy.  He was released and the FBI apologized for the error, and, while not explaining exactly how the error was made, promised to review its practices on fingerprint analyses.

The story of Anthony Martemus doesn't have that good an ending.

Martemus was convicted of a burglary based largely on a fingerprint identification by an expert, who testified that she was "100% certain" that the fingerprint lifted from a window where the break-in had occurred belonged to Martemus, and that another examiner had verified her conclusions.  Martemus argues that his attorney was ineffective for failing to meaningfully cross-examine the expert, and for not objecting to her testimony about the verification.  His appellate attorney did a good job, citing a 2009 report by the National Academy of Sciences noting the problems with the methods used by the examiner.  Unsurprisingly, though, in State v. Martemus, the court affirms.  Cross-examination falls under the rubric of "trial strategy and tactics," and thus whatever an attorney does here is essentially immunized from review.  The verification issue is another matter -- it presents a Crawford problem, since Martemus never got to cross-examine the person who supposedly verified the results -- but the court sweeps this under the harmless error rug.  It's hard to criticize the decision; this is basically an argument that you win at trial or not at all.

State v. Moore also seems like an easy one.  The jury went out at 2 on a Friday afternoon, and reported at 6:15 that they were deadlocked.  The defense counsel requested a Howard charge, but the judge demurred, finding that premature and instead telling the jurors,

Well, ladies and gentlemen, you just began your job this afternoon.  So some juries deliberate for weeks.  This is jury duty.  This is deliberation.  A jury's work is completed when there is a verdict reached on all the counts by all the jurors when you reached a verdict.  It's a unanimous system.  It takes work.  So have a good weekend, and we will see you Monday morning.

Hard to fault that, and the majority dismissed it as well, finding that whether the Howard charge is necessary is a discretionary matter for the trial judge.  But the dissent makes a good point.  The Howard charge, while asking the jurors to reevaluate their opinions and reminding them of their purpose in reaching a unanimous decision, does tell the jurors that they must do so only if a unanimous verdict "can be conscientiously reached."  The judge's comments didn't convey that:  it basically told them that they were going to sit there for however long it took to come up with a verdict.

Last week, I discussed the 8th's decision in State v. Freeman, which centered around whether the police had themselves created the exigent circumstances which they then used as an excuse not to get a warrant, and in my discussion of the case I noted that the opinion never mentioned the Supreme Court's decision this spring in Kentucky v. King (discussed here), dealing with that precise situation.  One can't accuse the court of not being up to date in State v. BonnellBonnell had been convicted of aggravated murder in 1989 and sentenced to death, but he's still around, on this occasion having filed an appeal claiming that his conviction in the same case for aggravated burglary wasn't a final appealable order, so he was entitled to another appeal.  The Ohio Supreme Court addressed this very issue just two weeks ago in State v. Lester (discussed here), and the panel follows that decision and holds that the defect can be corrected by a simple nunc pro tunc entry, and that's that.

One problem.  Lester addressed the situation of a journal entry not containing the means of conviction -- i.e., jury trial, guilty plea, whatever -- and said that wasn't necessary to make an order final.  It did affirm, though, that a journal entry which did not contain the fact of conviction was defective, and that appears to be the gravamen of Bonnell's complaint:  while the various entries indicate the sentence imposed for the aggravated burglary, nowhere do they say there was in fact a conviction.  The panel nonetheless concludes that this too can be corrected by a nunc pro tunc entry, citing Lester's language that the purpose of the rule is to inform a defendant that a conviction has been rendered against him, and Bonnell surely would have known of that.

Opponents of concealed carry laws argued that they pose the risk of "rage" shootings, created by easy access to a gun.  While those fears have largely proved unfounded, the NRA probably won't be using Matthew Warmus as a posterboy in advocating such laws.  In the spring of 2010, Warmus went to a Cavs game and got into an argument with the parking lot attendant over the fee.  The two wrestled, with the attendant getting Warmus in a headlock and punching him three times, then releasing him.  Warmus went over to his car, pulled out the gun he had a permit to carry, and shot the attendant three times, killing him.

Warmus was convicted of murder, and last week in State v. Warmus the 8th District affirms.  As might be guessed, the case revolved around the question of whether Warmus had acted in self-defense.  The favorable evidence on this point was that the attendant also had a gun; the helpfulness of this was muted by the fact that none of the other witnesses indicated that the attendant had ever pulled it out.

More critical, though, was the prosecutor's elicitation of testimony from the witnesses that, in their opinion, Warmus was not in imminent danger, and could have left.  Some of it even went to the extent of giving legal conclusions; the investigating officer responded affirmatively to the question, "if someone is putting you in danger but you had the opportunity to safely leave, by law do you have to exercise that opportunity?"

Under Ohio law, opinion testimony which goes to the "ultimate issue" are not prohibited, and the court takes refuge in that, holding that "the opinions were helpful to giving the jury a clear understanding of whether Warmus could reasonably believe that deadly force was necessary and whether he exercised sound judgment in doing so."   The court distinguished State v. Johnson, a 2002 case which the  10th District reversed a conviction because two police officers had testified that they wouldn't have fired a gun had they been in defendant's position.  The 8th explains that in  Johnson, since the officers hadn't witnessed the crime, their conclusions didn't meet the requirement that the opinion aid the trier of fact in deciding the ultimate issue.

This may not be a fair reading of Johnson, though.  There, the court pointed out that lay testimony on an ultimate issue "will seldom meet the test of being helpful to the trier of fact since the jury's opinion is as good as the witness' and the witness turns into little more than an 'oath helper.'"  That's arguably applicable to Warmus' situation; had the witnesses simply recounted their observations, it seems that the jury would have been fully capable of evaluating for themselves whether Warmus was in fear or could have retreated.

Also problematic is the handling of the investigating detective's testimony, which was couched in terms of whether a police officer could use deadly force under similar circumstances.  The court finds this was prompted by the defense's opening statement, in which it alleged that "Mr. Warmus responded to the gun threat just as a police officer would have responded."  Examination of the rest of the statement, though, indicates it was in reference to how many shots Warmus fired, rather than whether he should have fired at all.

Although the court's handling of this issue is a little troublesome, it's hard to quibble with the result.  Even Warmus' girlfriend, who was there, testified against him, and unless there were a whole lot of facts that went unreported in the papers or unrecounted in the court's opinion, it seems that this was indeed a case of a "rage" shooting.

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