Case Update - Year in Review
I'm going to do something a little different from what I've done in past years. I always do a recap of the U.S. Supreme Court's decisions when the term ends in June of each year, but I've never done anything like that for state cases. That's what I'm going to do now. I'm going to give you the good and the bad -- we'll stay away from the ugly -- but I'll concentrate on the ones that you should be aware of if you're a criminal defense attorney. So let's get started.
One big area of law this year has been allied offenses, in the wake of the Supreme Court's decision in State v. Johnson in December of 2010. Much of the cases involved attempts to sort out just what offenses were allied. Johnson had freed courts from the element analysis required by State v. Rance, replacing it instead with two simple questions: was it possible to commit both offenses with the same conduct, and were the two offenses committed with the same conduct? Well, maybe not so simple. Some cases were easy: felonious assault and domestic violence, for example, were certainly allied when committed with the same act, and so were rape and unlawful sexual conduct with a minor, and child endangering and using a minor in nudity-oriented material. Some weren't, but the courts nonetheless found them allied: robbery and felonious assault, felony murder and aggravated robbery, and felony murder and aggravated arson. There is confusion, though, as is apparent from the 1st District holding that murder committed with a firearm isn't an allied offense with weapons disability, while the 2nd District held that felonious assault and weapons under disability did merge. There'll necessarily be some clarification down the road.
The one Supreme Court case dealing with allied offenses, State v. Ford, may have inadvertently opened up another problem. Ford held that a firearms specification wasn't allied with the underlying crime, because the specification was an enhancement, not an offense. As one of my alert readers pointed out, though, that might mean a person can't be convicted of the spec under a complicity theory: under RC 2923.03, a person can only be convicted of complicity to commit an offense. There's a 1986 Supreme Court case holding to the contrary, but that was before Ford.
Speaking of the Supreme Court, the one area where it did hand down significant decisions -- and there weren't many -- was with regard to sex offender registration laws. The big decision, of course, was State v. Williams (discussed here), holding that the Adam Walsh Act was punitive, and couldn't be applied retroactively to people who committed offenses prior to its effective date. Following the court's decision the year before in State v. Bodyke, holding unconstitutional reclassifications under AWA of offenders previously classified under Megan's law, the remaining question is what happens to Megan's law offenders who violate registration or verification requirements. The 8th District has essentially taken the position that those offenders can't be prosecuted at all, because it would require the application of AWA to Megan's law offenders, and Bodyke and Williams prohibit that. The 1st District and others have taken a contrary position, and the Supreme Court might have had a chance to sort that out in State v. Gingell, but the record in that case (decision discussed here) was too muddled to allow that. Expect an answer this year.
A welcome relief to the mantra that "State v. Foster gave trial courts unfettered discretion in sentencing" was provided by a pair of 2nd District decisions, State v. Parker and State v. Nichols. In Parker (discussed here), the court reversed a 15-year sentence for a teacher convicted of having sex with one of his charges, finding that the judge's reason -- he wanted to dash the girl's hope of ever being reunited with the teacher -- wasn't a permissible ground for imposing the sentence. Nichols was even better: there, the court reversed maximum sentences for four counts of gross sexual imposition, engaging in its own analysis of the seriousness and recidivism factors and concluding that the trial judge had abused his discretion in calculating them. Both decisions are must-haves in your sentencing memorandum, even though the 8th District holds that it's not ineffective assistance not to prepare one, because almost no lawyer does. The question this year will be how much HB 86 will affect sentencing, a subject we'll address later in the week. A key issue will be its effect on consecutive sentencing, since it revives the "judicial fact-finding" required by SB 2 for that, and struck down in Foster.
Some excellent decisions on admissiblity of 404(B) evidence, most of them coming from the 8th District, and we'll discuss those tomorrow. In State v. Slaven, the 5th District notes that even if the evidence is found admissible under one of the 404(B) exceptions, the trial court must still determine whether the probative value outweighs the prejudicial effect. Slaven strongly suggests that evidence of similar acts in child sex abuse cases might fall on the prejudicial side of that ledger. The 9th District's decision in State v. Morris is also notable, at least for now: the court held that the standard of review for determining whether evidence is admissible is de novo, rather than abuse of discretion. Morris was argued in the Supreme Court a couple months back, though, and while there are a number of possible outcomes in the case, the court affirming Morris' holding on this point isn't one of them.
The 6th District came to the same conclusion as Morris in State v. Richcreek, with regard to how a trial court's decision on hearsay is to be reviewed. For that reason and others, Richcreek is probably the best decision on hearsay I've seen since I started this blog, as I said when I reviewed the decision last September. Click on the link, download the case, and print out that and the blog post, and stick it in your trial folder. You'll thank me.
The new "open discovery" rules went into effect in July of 2010, but there have been few cases on them. One is the 2nd's decision in State v. Pierce, where the trial judge had refused to permit the defense to cross-examine a state's witness with a statement the witness had given the defense investigator, because the statement hadn't been turned over to the prosecution. No matter, says the 2nd; neither side is obligated to turn over statements it anticipates using for impeachment purposes. And in State v. Fussell, the 8th suggests that sanctions for discovery violations might be different -- and less -- for the defense than for the state. The judge had excluded defense witnesses from testifying because their names hadn't been provided to the prosecution, but the 8th reverses, finding that this interfered with the 6th Amendment right to present a defense. It followed that up last month by affirming a dismissal of an indictment, with prejudice, for a violation by the state.
As for my favorite case from the past year, well, there's a tie between State v. McCrory and State v. Sullivan. McCrory involved the 6th District's affirmance of defendant's rape conviction, where the victim "went to appellant's residence for a job interview in response to an advertisement that appellant posted on craigslist.org for a topless maid," but insisted that the defendant "informed her ahead of time there were no sexual expectations." Sullivan involved the issue of what the jury had considered in returning an indictment, and the concurring opinion produced the quote of the year: "Even if the hoary aphorism that a grand jury would indict a ham sandwich were true, such a result should still make clear that the grand jury considered what the sandwich allegedly did."