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What's Up in the 8th

A light week from the court, in apparent anticipation of the upcoming holiday.  Only six criminal decisions, but there's not a turkey in the bunch.

The man-bites-dog story of the week is that the State wins a search motion in State v. BushAnd deservedly so, although there's a slight rough patch.  One evening a year ago, two of Cleveland's finest decided to add their entry to the Bullshit Traffic Stop of the Week® sweepstakes that are a recurring feature on this blog, stopping a car because they noticed that the rear license plate was not illuminated, this occurring in an area of the city such infractions are not taken lightly, as they might be in tonier portions of Cleveland, were such a thing to exist.  As they approached the vehicle, they saw Bush, the back-seat passenger, "shifting back and forth in the seat and making a lot of movements with his head."  When he reached the passenger side, one of the officers smelled marijuana and noticed more of it in the back seat with Bush, who readily confessed to having smoked the demon week.  All this time Bush was moving his hands down near his lap and waistband, despite multiple orders to keep his hands visible.

Bush was asked for identification, but didn't have any, so the officers told him to exit the vehicle.  He was handcuffed, and the officer patted him down and felt what seemed to be the cylinder of a revolver.  Bush fled, briefly, but was apprehended.  The officer testified that he intended to arrest Bush for the marijuana.

Where do we begin?  First, it turns out the license plate was a temporary tag.  Under the law, that can be placed in either the rear window or in the license plate holder.  The law also requires the license plate to be illuminated.  The temporary tag wouldn't have to be illuminated if it was placed in the rear window, but the court concludes, probably correctly, that if it's placed in the holder, it has to be illuminated just like a regular license plate.

Then there's the problem of the identification of the marijuana smell.  Prior cases have held that before the smell of marijuana can establish probable cause for a search, the State must introduce some proof that the officer is qualified to recognize the odor, and no testimony on that point was introduced here.  The court skates by that, noting that the observation of the marijuana, coupled with Bush's admission he was smoking it, sufficed to establish probable cause.

Last, there's the problem of the arrest, since one can't be arrested for a minor misdemeanor.  But there's an exception to that, where one can't prove one's identity, and that's enough for the court here.  That's a little troublesome; as Bush noted, there are cases saying that the police have to take some steps to establish identity, such as running a suspect's social security number through their computer.  The better course would simply have been to hold that Bush's repeated movements were sufficient to create a reasonable suspicion that he was armed, thus justifying the patdown.

Wayman Roseberry decides to enlist technology in his effort to get into prison:  he sends numerous text messages to his ex-girlfriend telling her that he's about to break into her house, and finally that he has done so.  She wrote down the first set of text messages, and reads them to the jury.  That's fine as recorded recollection, under EvidR 803(5), says the court.  The detective took pictures of the messages, and those pictures are introduced, and that's fine, too.  The problem was that the he also introduced pictures of the second set of messages -- the ones sent after Roseberry had broken into the house -- and the victim hadn't testified to those.  The detective did not have knowledge of who the speakers were for those messages, and thus they weren't sufficiently authenticated to permit their introduction.  The court does a nice job on the harmless error analysis, concluding that the first set of messages showed only that Roseberry was contemplating breaking in, but nothing indicating his intent in doing so was to commit a felony.  (He talked about needing a place to stay.)  It was only the second set of messages, the ones unathenticated by the victim, that gave rise to the inference of his intent to break in and steal the victim's possessions.

Wayne Jackson's possible nomination as Father of the Year goes by the wayside due to the events of February 12, 2010.  He'd picked up his 10-year old son for weekend visitation, and when Jackson's girlfriend accused the boy of stealing her daughter's camera, Jackson punched him three times in the stomach, then heated a fork on the stove and then used it to burn the son's forearm two times.  Later that night, he beat the son with a belt.  For good measure, when Jackson drove the boy home, he literally "dropped" him off:  he pushed him out of the car and into a puddle on the street.

This misanthropy earned Jackson indictment on one count of felonious assault, under the serious phsyical harm subsection, and two counts of child endangering, one for abuse and one for excessive corporal punishment, both with serious phsyical harm specifications, and one count of domestic violence.

But which count pertained to which act -- the punch, the burn, the beating, or pushing him out of the car?  The indictment made no effort to distinguish them, nor did the bill of particulars, and the jury was confused as well, sending back numerous messages asking which count applied to which conduct, inquiries which went unanswered.

A defendant is entitled to unanimity in a jury's verdict, and there are two situations where that might pose a problem.  The first is where the crime can be committed by "alternate means."  Burglary, for example, requires the defendant to have entered the premises through "force, stealth, or deception."  Does a jury have to unanimously agree which of those methods the defendant used?  No, the courts have consistently held. 

But it's a different situation where the crime involves multiple acts; in such cases, the jury must unanimously agree as to which act or incident constitutes the crime.  And that's the problem in State v. Jackson; some of the jurors could have found concluded that Jackson committed child endangering by burning the boy, others could have found a reasonable doubt as to that, but determined that he committed the beating, and thus he could be convicted, without a unanimous conclusion as to what he'd actually done.

The concern that that had happened in Jackson's case was heightened by the verdict itself:  not guilty of felonious assault, guilty of domestic violence and both counts of child endangering, but not guilty of the attendant serious physical harm specifications.  The prosecutor argued on appeal that the jury, by acquitting Jackson of the felonious assault and specifications, must have concluded that the punches in the stomach was the guilty act; but that argument was belied by the fact that the prosecutor had made no mention of the punches in his closing argument to the jury, concentrating solely on the whipping and the burn.  Accordingly, Jackson was denied his right of jury unanimity.

So the case goes back for retrial, and this time the prosecutor will indicate in the bill of particulars, and the court will instruct the jury, on which act goes with which count, right?  Here's where Jackson takes an interesting turn.  The indictment serves the purpose of not only advising defendant of what he is charge with, but protecting him against double jeopardy.  As the court puts it:

Was Jackson acquitted of burning R.J.? Was he convicted of hitting him with a belt? Was he convicted of punching him in the stomach? It is impossible to tell.  Consequently, the record does not "show with accuracy to what extent [Jackson could] plead a former acquittal or conviction" in a second trial.

Since we don't know what Jackson was convicted of, and acquitted of, in the first trial, there can't be a second, for fear of convicting him of something for which the first jury acquitted him.  Jackson's convictions are vacated and he is discharged.  Game Over.

I get on the 8th District's case from time to time, but in State v. Jackson and State v. Williams, the en banc decision two weeks ago(discussed here),  the 8th has come down with well-analyzed and well-written opinions on the key issues of multiple-count indictments and 404(B) evidence.  And they are decisions that every defense lawyer needs to know.

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