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What's Up in the 8th

Ain't technology grand?  I pumped out a 27-page brief in two days last week, largely because it was what I call a "non-Star Trek" brief:  it did not require me to go where no man had gone before.  There was an assignment of error on identification testimony, so I pulled out the law from a brief I'd written a few years ago, updated it, and put in the facts.  Another assignment on manifest weight, and I've got a little folder devoted to the boilerplate law on that and numerous other subjects.  Another one on impeachment with prior inconsistent statements, and didn't I do something on that last year?  Why, yes I did.

And when it comes time for the 8th District to write an opinion on this, I'm sure they do the same thing.  Press a couple keys, there's all the standard stuff on manifest weight, or sentencing under State v. Kalish, or allied offenses under Johnson... 

Then again, that's somewhat understandable:  this week's output of 33 opinions puts them at an even 1,212 for the year.  That's more than any other district, by a healthy margin:  almost twice as many as the 10th (648), and well more than that for the 2nd (578), the 6th (397), and the 1st (136).  (I've been told that the 1st disposes of many cases -- accelerated docket and Anders briefs -- by journal entries rather than opinions.)  Interestingly -- if you call this interesting, and if you do, some mental health intervention might be in order -- the 5th District had the second-most opinions, with 723.

The 8th did give the boilerplate a workout in several decisions, but it also had some fun in a couple of cases.  Let's take a look.

Let's say you're the trial judge in State v. DzelajlijaThe defendant was convicted of robbery back in 2006, but the court of appeals reversed because of evidentiary issues.  At the retrial, Dzelajlija was convicted again, but then State v. Colon I and Son of State v. Colon come out and hold that an indictment for robbery has to specify a reckless mens rea, and this one didn't, so back it goes again.  Except then State v. Horner comes out, in which the Supreme Court sort of says, hey, we might have had a little bit of a buzz on when we came up with that Colon stuff, so maybe you should forget that whole thing...  So there you are:  you have an opinion from a court of appeals saying that you have to retry the case because the indictment was wrong, but you've got a later opinion from the Supreme Court saying that the indictment isn't wrong.  What to do?  The trial court gets it right:  it reinstates Dzelajlija's convictions, because the law is that a trial court has to obey the court of appeals' mandate unless there's an intervening decision by a higher court.  Which is what happened here.  Except that the trial court didn't quite get it right, because the court of appeals had reversed on the indictment issue without addressing the assignment of error concerning the manifest weight of the evidence, so now the case has got to go back so they can do that...  The concurring judge argues that the simpler course would be to sua sponte consider the manifest weight argument -- despite the fact that the issue wasn't briefed in this case, and a different panel heard the earlier case -- and concludes with the observation,

It is difficult to think of this case in the context of Colon I, Colon II,and Horner, supra, without remembering Stan Laurel looking perplexed at Oliver Hardy and stating "What a fine mess we made Ollie."

Can I hear an amen?

In State v. Richmond, the defendant argues that his sentence of 28 years for viciously beating and anally raping a 13-year-old boy was excessive, and the court spends way more time than it needs to discussing why it's not.  As might be expected where a brief contains 14 assignments of error, Richmond deals with numerous other issues, some of them handled well, some not, none of them to Richmond's advantage.  The counts of felonious assault, domestic violence, and child endangering should have merged, but that doesn't affect the length of Richmond's sentence.  There was no Crawford problem with the admission of hearsay statements from various people, like the social worker, mother, and other relatives, since they all testified at trial, and that satisfies Crawford's confrontation requirement; if there's an evidentiary problem, the brief doesn't argue it.

The only troublesome part of the opinion is its handling of the testimony of the social worker and the claim that she gave expert testimony as to the victim's veracity.  This is prohibited by the Supreme Court's 1989 decision in State v. Boston, but over the past five years, the 8th has developed a line of cases holding that Boston doesn't apply if the victim testifies.  I've taken pains -- here and here -- to point out that there is no legal or logical basis for this theory, but fortunately, it's not really at issue here:  the social worker merely testified that she found the claims of abuse "substantiated," and there's plenty of case law finding no problem with that.  There might be a fine line between saying, "yes, I believe he was abused," and saying "yes, I believe the victim's telling the truth about being abused," but it's a line nonetheless.

One point of value in Richmond:  signed jury waiver wasn't necessary for the judge to hear the sexually violent predator specification and the repeat violent offender specification.  Why the former was even alleged as error is somewhat of a mystery, since Richmond was found not guilty of that.  Then again, similar mysteries abound:  in State v. McGee, the brief assigns as error that the trial judge gave the defendant the maximum sentence when, in fact, he had not, and in State v. Bauldwin the defendant claims the trial court didn't advise him of his appellate rights, any possible prejudice he might have suffered from that cured by the court's granting a delayed appeal.

The most interesting decision is State v. SnufferSnuffer was the head of a company which handled disbursement of government funds to the disabled, and pled to 15 counts of theft and one of forgery for pilfering money from both the government and the clients.  He argued on appeal that some of the theft counts, and the forgery count, should have merged, and that his sentence of 12 years was excessive.  The opinion notes that in the past, courts have uniformly held that forgery and theft are not allied because they have different elements, but since State v. Johnson, the court is no longer required to "slavishly" compare the elements, but to determine whether they can be committed by the same conduct.  But Snuffer didn't raise this argument below, so it's reviewed for plain error.

Back in March, the court in State v. Masters held that a trial court had a duty to inquire into the facts before accepting a plea to determine whether any of the offenses were allied, and remanded the case to the trial for that determination.  Snuffer disses Masters pretty thoroughly, noting that allied offenses is a sentencing, not a plea, issue.  Here, the court concludes that in the absence of any factual basis for believing that the offenses were allied, there's no plain error.  That's a clear warning for defense counsel:  if you don't preserve the allied offense issue at sentencing, you're going to foreclose it on appeal.

The nicest part of Snuffer is its handling of the sentencing issue.  Eschewing a regurgitation of Kalish's standard for reviewing sentences, the opinion in a single paragraph finds it "unnecessary to dwell" on Snuffer's claim.  The only support he ventured for the claim is that the offenses occurred over a two-year period, and the court finds it "unclear why Snuffer believes that fact benefits him," since it eliminates the possibility that this was a "one-time lapse of judgment."

Given Snuffer's predilection for stealing government money, the long-term nature of the theft in these cases, and the particularly damning fact that his victims were disabled persons under government supervision, a 12-year combined sentence did not constitute an abuse of the court's discretion.

That's well-written, to the point, and best of all, completely correct.

*   *   *   *   *

Just a reminder.  this is my last post for the holidays.  Enjoy yours, and I'll see you back here on January 4.

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