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What's Up in the 8th

Famous last words run the gamut from the combative ("A king should die standing" -- Louis XVIII) to the poetic ("I must go in, the fog is rising" -- Emily Dickinson) to the comic ("Either that wallpaper goes, or I do" -- Oscar Wilde).  Cognizance of the importance of one's last utterance is perhaps best captured by Pancho Villa's:  "Don't let it end like this.  Tell them I said something."

Sharieff Mapp's last words probably won't make any lists; they were, "I thought you was a bitch standing there."  The man he said them to, Andre Wilson, was standing outside the Honey Do Lounge one night with two women, when Mapp came up and complimented the trio on being a "nice-looking group of females" before realizing his mistaken inclusion of Wilson.  The latter took umbrage, retreated to his car and returned with a pistol, which he promptly used to kill Mapp.  State v. Wilsonhis appeal from his resulting conviction of aggravated murder, was one of the 16 criminal decisions handed down by the 8th since the holidays, and it didn't go well.  The eleven -- count'em, eleven -- assignments went for naught.

The court's analysis and rejection of those assignments is not cause for concern, with one exception.  The defense had cross-examined the two eyewitnesses to the incident on inconsistencies in the statements they had made to the police, and on redirect examination the witnesses were permitted to read aloud to the jury the entirety of the statements.  As the court notes, this is permitted if the introduction of the statement "is offered to rebut an express or implied charge against [the declarant] of recent fabrication or improper influence or motive."  For example, if you claim that 14-year-old daughter in a domestic violence case is making up the charge to get even with her father for being disciplined, the prosecution can introduce evidence that the daughter made a statement about the abuse before she was disciplined.

But that doesn't appear to be what happened here; it's hard to see how the same statement used for cross-examination for inconsistencies could also refute a claim of recent fabrication or improper motive.  It appears more likely that the court was confusing this rule with EvidR 106, the "rule of completeness," which provides that when one party uses part of a writing, the other party may introduce any other part of it "which ought in fairness to be considered contemporaneously with it."  That just means, though, that you can't take something out of context in a statement; it doesn't mean that if you use a statement to point out the witness' inconsistencies, the other side gets to have the witness read the whole thing, and that seems to be the effect of the court's ruling here.

The court did provide its own memorable quote, though:  in rejecting an assignment for ineffective assistance of counsel, the court noted that it did not have to deal with the issue because of the "lack of briefing" by counsel, relying on the 11th District's observation that "An appellate court is not a performing bear, required to dance to each and every tune played on appeal."

Another person talking himself into trouble, although with not nearly so dire consequences as those suffered by Mapp, was the defendant in Clydell Mack.  I handled the appeal, and argued on that his conviction for breaking and entering, resulting from his being found in a vacant house, was based on insufficient evidence since the prosecutor had neglected to bring in the owner to testify that Mack didn't have permission to be there.  Might've worked, too, had Mack not told the cops, "I know I shouldn't be here, I'm just looking for some scrap."

Sometimes it's what you don't say, rather than what you do, that gets you in trouble.  In State v. Venes, the defendant pleads to 111 counts of child porn, and gets 24 years in prison.  It all comes back, though, because the judge, a thorough and experienced one, neglected to advise Venes of his right to compulsory process.  (After listening to a recitation of a plea deal involving 111 counts, and having to advise Venes of what each of those meant, I'd probably have zoned out, too.)  The opinion leads me to wonder whether the compensation rate for appellate judges has been changed so that they're paid by the page:  although the State concedes error, the opinion is still six pages long, contains an extensive block quote (two pages) from a Supreme Court decision, and the sure giveaway is that the block quote is double-spaced.

State v. Harris provides discussion of a rarely-seen legal defense:  renunciation or abandonment of the crime.  Harris had enlisted two confederates to break into a house, and drove them there and actually helped break the window and pulled out some glass.  Rather than entering the home, though, Harris went back to his car, then drove away.  This would still seem to be more than sufficient evidence to support guilt on a complicity theory, but the court instead concentrates on the fact that three of Harris' fingerprints were found on the interior and exterior of the window, and "This court has held that in proving the element of unlawful entry in the criminal prosecution of a defendant upon a charge of burglary, proof of the insertion of any part of defendant’s body is sufficient to constitute an entrance."  This sounds suspiciously similar to the test for penetration in a rape case, but fortunately with a different body part.


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