What's Up in the 8th
I've written before that for years the 8th District has been the most 4th Amendment friendly in Ohio, if not the country. It's also always been one of the most hostile toward the Adam Walsh Act; it is virtually impossible to prosecute a failure to register or notify case in this county against a Megan's Law offender.
Well, the 8th has recently been building a reputation as one of the most insightful courts on 404(B) evidence. It began a month ago with State v. Williams, an en banc decision on the subject, which I discussed in detail here. The subject comes up again in two more cases this week, State v. Yancy and State v. Sutton.
A Shaker Heights resident comes home to find her kitchen window screen slashed, and several items that had been sitting on the kitchen counter -- cell phones, a wallet, purse, garage door opener and keys -- gone. A check of her garage found that her Inifiniti also among the missing. A couple of weeks later, East Cleveland police saw an Infiniti speeding, and chased it. They lost it momentarily, but then caught sight of it again, parked along the road, with Devon Yancy, the only person in the vicinity, about five feet from it and walking away. The car was the one that had been stolen in Shaker Heights, had license plates on it belonging to a Buick registered to Yancy's father. At trial, the State introduced evidence that Yancy committed three burglaries in 2003, where he slit the screen of a window in an older East Cleveland suburb and removed items from the kitchen counter underneath the window.
Rule 404(B) evidence can be used for a wide variety of purposes -- to show motive, intent, opportunity, lack of mistake or accident, among them -- but the court disapproves of a shotgun style approach, saying that the better practice is to limit it to a single purpose relevant to the case. Here, that was identity: the state was arguing that the prior burglaries were a "behavioral fingerprint" that permitted the inference that if Yancy had committed those, he'd committed this one. The court engages in an extensive discussion of this use of 404(B) evidence, finally concluding that the similarities between this crime and the previous ones were insufficient. Good news for Yancy, no? Not so much; he can spend the next nine years in prison wondering what might have happened if he hadn't left a baseball cap with his DNA at the crime scene, allowing the court to write off the admission of the 404(B) evidence as harmless error.
Timothy Sutton fares better; the State also seeks to introduce evidence of a 5-year-old convicton for burglary in his new case for the same offense. This was an easy decision; there really were no substantial similarities between the two cases, other than that a house had been broken into in each one. The more interesting facet of Sutton is the court's treatment of the issue of prejudice. As the Yancy court noted, even if the evidence is admissible for one of the purposes of 404(B), it must still be excluded if the prejudicial value outweighs the probative effect. I've often believed that the latter is just so much chin music; I've never seen a case where the court concluded that the evidence was admissible, but that the trial judge erred in admitting it because it was overly prejudicial. The Sutton court comes close, holding that "the evidence was so prejudicial it outweighed any possible probative benefit," since it "was offered simply to show that defendant was guilty of the instant offense since he had committed the previous offense," a conclusion supported by the fact that the prosecutor made that very argument in his closing .
Maybe it's just me, but it seems that the opinions in the 8th have gotten markedly better. Sutton and Yancy contain extensive and well-written discussions of 404(B) evidence, and State v. Birinyi does an excellent job of summarizing the law on self-representation. Birinyi, charged with nonsupport, wanted to proceed pro se. That requires a hearing to ensure that the defendant realizes the perils of being his own lawyer; the court must discuss with him the penalties of the crimes he's charged with, possible defenses, his prior legal experience, and so forth. The judge did that here, and found that Birinyi had validly waived counsel.
A lot of things happened after that, like a mid-trial referral for psychiatric evaluation, transfers to two other judges, and Birinyi's assault on a deputy sheriff during a subsequent pretrial hearing. He finally proceeds to trial before a fourth judge with both the support and felonious assault charges joined, and proceeds pro se, the judge believing that the original waiver is still valid. There's case law holding that a waiver in the first trial applies to a second, but here the court finds that the circumstances in the second trial -- the new charges, mainly -- were such that judge should have conducted an additional inquiry to determine whether the waiver was valid. Despite the reversal and remand, the court proceeds to the argument that the judge erred in joining the charges. Because counsel failed to object to the joinder, the court reviews for for plain error; and finds that while joinder was undoubtedly prejudicial, the evidence was overwhelming, and so no plain error occurred. It cautions, though, that "had appellant objected to the consolidation of his cases at the appropriate time, this court likely would have reached a different outcome." Word to the prosecutor.
I still read the 8th's civil cases from time to time, and the court obviously wrestled with its decision in Marusa v. Erie Ins. Co. Marusa had been hurt in an accident caused by a police officer responding to an emergency. Since she couldn't recover against the officer because of sovereign immunity, she sought compensation through her uninsured motorist coverage with her own company, where she finds a Catch-22 as fine as anything Yossarian ever encountered: the uninsured coverage will only pay for damages the insured is "legally entitled to recover" from the other driver, and since Marusa isn't legally entitled to recover from him because of sovereign immunity, she gets nothing. The court's hand here is forced by a Supreme Court decision to this effect several years ago, and the majority finds itself "duty-bound" to follow it, and "reluctantly" affirms the grant of summary judgment. This provokes a withering dissent, which notes that policy specifically defines an uninsured motorist as one having sovereign immunity, and argues that the Supreme Court decision creates "an intolerable state of the law."
But then we come to State v. Hudson, which presents a number of troubling issues. It's not clear whether the defendant is being represented by the lawyer for a co-defendant, or the lawyer's employee; the latter is apparently told to leave the courtroom during the plea. The joint representation would at least raise the possibility of a potential conflict of interest, but both the judge and the appellate panel shrug that off with no real inquiry. Hudson says that he was told his sentence would be twelve years, the judge advises him that she's not making that promise, and he winds up getting thirty- one. There were also some mental health issues that went unaddressed. Hudson argues on appeal that his sentence was disproportionate, pointing out that he had no criminal record and another co-defendant who pled guilty to similar offenses before a different judge got only four years. The court finds that he waived this claim by not raising it in the trial court. That would've been a neat trick: the co-defendant wasn't sentenced until seven months later.
Again, maybe it's just me, but one wishes that the court could have mustered as much outrage for a man with no criminal record sentenced to three decades in prison under these circumstances as it did for a plaintiff left uncompensated in a traffic accident.