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Case Update - The Year in Pictures

Okay, I lied.  No pictures.  Just hard-hitting analysis of the major decisions of the Ohio Supreme Court over the past three weeks.

Of which there was exactly one, State v. Carlislewhich merits discussion.  Oh, the things we learn.  I'd always thought that a judge had the ability to modify her sentence up until the time the defendant was shipped off to prison.  So did Jack Carlisle; he was out on bond from his three-year sentence while he appealed his kidnapping conviction, but when that was affirmed, he persuaded the judge to change the sentence to community control sanctions because of his serious health problems, which included required dialysis three times a week.  There are indeed cases which support Carlisle's argument, but they were based on a statute that's since been repealed.  I didn't get the memo, but neither did anyone else:  neither the appellate court nor the litigants picked up on it.  Bottom line:  a felony sentence is final upon the issuance of the final order.

One other decision of note to those thinking of running for office.  In In re Judicial Complaint, a commission of five judges sanctions attorney Mark Davis for judicial campaign literature boasting that he had obtained "six college degrees in seven years," three times the actual number he'd earned.  Left unexplained in the opinion is why Davis thought that claiming to have six college degrees would impress an electorate which, given the current climate of anti-intellectualism, looks askance at candidates who are polysyllabic.

In D.C., the Court's been out of session a week longer than I was, and oral arguments don't resume until next Monday.  The highlight will probably be FCC v. ABC Television, which features another go-around on the FCC's "indecency" policy, this one posing the question of whether ABC could be fined for an NYPD Blue episode in which a woman's naked buttocks, and the outline of her naked breast, were shown.  As Elmer Fudd said in Apocalypse Now, "the howuh... the howuh..."

Speaking of horrors, my BFF Lexis informs me that Ohio's appellate courts were not taking time off, churning out some 270 decisions, so let's take a look...

In State v. Cleland, the 9th District notes that some showing of police coercion is a prerequisite for a finding that a confession is involuntary, and that the police need not readvise the defendant of his Miranda rights if a subsequent interrogation shortly follows the one at which the rights were given.  It also follows its policy of remanding cases involving allied offenses which were tried before State v. Johnson back to the trial court for application of Johnson, without any analysis of whether the offenses are in fact allied... Speaking of allied offenses, the 12th District holds in State v. Weathers that convictions for felonious assault, domestic violence, and violation of a protection order should have merged... No problem in having witnesses testify that the defendant was the person in the videotape, says the 10th District in State v. Bond, rejecting the claim that the jurors should have been allowed to make the identification for themselves... Moving (or removing) a victim's clothing is sufficient force to support a rape charge, especially where the victim is 16 and the defendant is an authority figure (a stepfather in this case), says the 8th District in State v. Walker...

In State v. White, the defendant is a passenger in a car, and the trial court suppresses evidence that a gun was found under his seat, concluding that while the stop was legal, the search of the car was not.  The 9th District reverses, finding that the passenger had no standing to object to the search of the car... The 1st District holds that aggravated murder and aggravated robbery do not merge in State v. Tibbs, relying on pre-Johnson cases holding that "the commission of aggravated felony murder is 'never merely incidental' to the commission of the underlying charged felony"... In State v. Turner, the 2nd District also relies on old cases in holding that aggravated burglary and aggravated robbery don't merge, since one crime (burglary) is completed before the other begins.  An "ouch" moment there:  the appellant's brief had cited a 1979 6th District case supporting the proposition that the two offenses were allied, only to have the 2nd note that "had appellant dug further," he would have found that the 6th District decision had been reversed by the Supreme Court... Children's Services employees were not agents of law enforcement, and thus defendant was not entitled to Miranda warnings before being interviewed by them, the 4th District holds in State v. Phillips...

Great decision out of the 9th District in State v. Stetz, which affirmed the suppression of an eyewitness identification obtained through a cold stand.  The court analyzes the issue of burden of proof, holding that the defendant bears the initial burden of showing that the identification process was impermissibly suggestive; once he does so, the burden shifts to the State to show that the identification was reliable.  The court also relied on State v. Henderson, the New Jersey Supreme Court's recent 108-page opus on the pitfalls of eyewitness identification.  Stetz is a must-read if you've got an identification issue.

Reason #31 for having your investigator interview a witness instead of doing it yourself.  In State v. Johnson, the defendant's attorney interviewed a child sexual abuse victim and obtained a written statement contradicting what the child had said earlier.  The State then moved to have the attorney disqualified, claiming that he could be called as a witness.  The parties disputed whether the child's mother had been present when the statement was taken, the attorney arguing that she could be called.  The trial court nonetheless disqualified him.  The 6th District reverses, finding that the trial court erred by failing to find that the attorney was a "necessary" witness, rather than merely a "potential" one; disqualification is permissible only in the first instance, where "the attorney is someone who has relevant, necessary information that no other witness can provide."

Dumb Criminal Award of the Week goes to the defendant in State v. Franklin.  In its opinion partially reversing his conviction of engaging in a pattern of corrupt activity involving drug dealing, the 2nd District rejects his contention that the trial court erred in admitting a compact disc found in Franklin's car, near a bag containing heroin.  The disc, complete with case and photograph, was an instructional video for drug dealers entitled, "Never Get Busted Again."

Overindict much?  In State v. Benit, the 10th District affirms the defendant's conviction for burglary.  The defendant, who was homeless, went into an unlocked house that was for sale, ate some candy and drank some pop that was on a kitchen counter, walked through the house until he found a bed, then lay down and fell asleep, where he was discovered when the homeowner returned.

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