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What's Up in the 8th

Ah, the wonders of television.  Featured at right is the star of the reality show, Dog the Bounty Hunter, and his lovely bride exchanging their wedding vows, an event which took place the day following his daughter's death in a car accident.  If a picture's worth a thousand words, 800 of them in this one are "white trash."  The producers of the show might want to keep an eye on this blog for future plot outlines, such as the one found in the 8th District's opinion last week in Mota v. GruszczynskiMota, a bounty hunter, was hot on the trail of Jerome J. Gruszczynski, who was staying at the home of his parents.  (The opinion, for obvious reasons, uses everybody's first names.)  Mota spotted him in the yard drinking beer with some buddies, and when Jerome ran into the house, Mota followed him inside, only to encounter the family dog, Buckshot.  Then again, the real (human) Dog might not like the plot:  Buckshot bit Mota on his hand, thigh, and scrotum.  Mota sued the parents and owners of the home, but the 8th affirms the grant of summary judgment in an opinion in which we learn that (a) it used to be that a dog owner didn't have liability to one who was committing a trespass, but the statute's been amended to limit that to those committing a criminal trespass, and (b) RC 2713.22, the statute that authorizes a bounty hunter to arrest a defendant, shields them from criminal liability for a trespass, but doesn't negate their status as a trespasser.  Or something like that.  I stopped reading the case because I just had to go back to that picture.

The picture was preferable to the 8th's decision in State v. Hall, an appeal I handled.  Hall was convicted of being one of several people in two cars who did a driveby shooting at a house.  At trial, the defense counsel used the police report to refresh the detective's recollection as to the time police were called; because of that, the trial court allowed the State to introduce the entire police report, which then went back with the jury during deliberations.  As the panel recognized, this is wrong on so many levels:  even if a statement or report is used on cross, that doesn't make it substantive evidence which can be introduced.  Further, EvidR 803(8) specifically bars the introduction of police reports unless they're offered by the defense.  The opinion recounts in detail the prejudice this engendered, with the jury learning of statements that witnesses never testified to at trial, and charges that were never filed.  Even worse, there's a Crawford problem, because the observations of the police officers were contained in the report, as well as statements from people who never appeared at trial; neither, for that matter, did the police officers.

That takes care of that, right?  Wrong.  After spending six pages detailing the prejudicial consequences of this error, the majoirty brusquely dismisses it in two paragraphs as harmless.  Why?  Although no physical evidence linked Hall to the crime, the person sitting on the porch made an identification of him, another claimed to have recognized his laugh as he drove away, and Hall's girlfriend, whose family lived in the house, testified that he called her afterwards and confessed.  This, the court finds, is "overwhelming" evidence of Hall's guilt.

Although the opinion does an excellent job analyzing the legal issues, its handling of the factual record is less than stellar.  It fails to mention, for example, that when asked by the 911 operator which car Hall was in, the witness replied, "It happened so fast, we couldn't tell."  Assuming one can make a "laugh ID," the witness claiming to have done that never mentioned anything to the police about it.  The girlfriend's claim of the confession was buttressed by the fact that phone records showed he called her after the incident, but what the opinion fails to mention is that she claimed that he left a voice mail message, which was never introduced; moreover, those same phone records showed that she called him 67 times over next three days, and wrote him numerous love letters in jail, conduct hardly consistent with believing he'd shot up her family's house.  Even if the evidence had been overwhelming, as the dissent ably notes, a Crawford error, like any other constitutional error, must be shown to be harmless beyond a reasonable doubt -- that is, there must be no reasonable possibility that it contributed to the defendant's conviction.  The 8th has been much better in recent years in avoiding the tendency to arrive at a desired result by making a perfunctory determination that even the most egregious error is harmless, but Hall unfortunately bucks that trend.

A month ago my friend John Martin of the Public Defender's office had an oral argument right before mine.  My case involved an argument that the defendant's sentence was too long, but his was equally Quixotic:  he contended that a trial court was required to conduct a colloquy with a defendant to ensure that his jury waiver was valid.  When a defendant wants to waive counsel and represent himself, for example, the court must engage in an extensive discussion with him, informing him of the perils of self-representation and making sure that he understands the charges, possible defenses, and the consequences of what he's doing.  Not so with a jury waiver:  while it needs to be in writing, signed by the defendant, and done in open court, the latter means that the judge is required to do no more than hold up the document and say, "Is this your signature?"  Martin made an eloquent plea that the Boykin requirement of a knowing, intelligent, and voluntary waiver reuires more, but the statute and piles of case law say it doesn't, and in State v. Simmons, the 8th adds to that pile.

Finally, some interesting work in another non-citizen plea case.  Two years ago in Padilla v. Kentucky, the Supreme Court held that an attorney rendered ineffective assistance by advising his client that there would be no immigration consequences to his guilty plea.  Wrong call:  the crime Padilla pled guilty to involved mandatory deportation.  Padilla (discussed here) actually went further, holding that counsel was required to do more than simply refrain from giving the wrong advice:  he had a duty to warn his client of the possibility that there might be immigration consequences.  In State v. Lababidi, the defendant raises that claim, but the court correctly notes the dissimilarity between that case and this one:  in Ohio, unlike Kentucky, the trial court is required under RC 2943.031 to warn a non-citizen of the possible immigration consequences, and that means the defendant didn't suffer any prejudice from the attorney's failure to do so.

But, as the concurring (only in judgment) opinion perceptively notes, that's not necessarily the case.  While the warnings would solve the problem of the attorney's complete failure to inform the defendant of immigration consequences, it doesn't solve the problem of attorney misadvice.  What if the judge is telling the defendant that he may be deported, excluded from admission, or denied naturalization (which is all that the statute requires), while the attorney is wrongly advising him that none of those things will happen?

Speaking of ineffective assistance, you remember the statute about bounty hunters that I cited above?  (You know you want to go back to look at the picture.)  That marks exactly the second time since its enactment in 1953 that the statute has been cited in a court opinion.  The first was back in 2001, in State v. Kole, where Kole had been indicted for burglary for entering the residence of  a third party to arrest a fugitive.  The Supreme Court reversed, finding that the attorney was ineffective for failing to raise the statute as a defense, although not going so far as to find that the statute would be a defense.  This was too much for Justice Cook, who dissented, and also argued that an attorney's failure to raise a statute that no court had even mentioned in 48 years could hardly be regarded as deficient performance.


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