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What's Up in the 8th

I have a rule that I won't do an Anders brief if there was a trial.  After all, there's always resort to weight or sufficiency arguments.  That rule was sorely tested last week; I had to write an appeals brief where I had absolutely, positively nothing.

I think I know how the prosecutor who was tasked to write the brief in State v. Durden felt.

In Durden, the police responded to a call of a robbery, and got a description of the suspects as two women and a male.  They toured the area and saw two females matching the description enter an apartment, then leave a minute later.  The cops spoke with the suspects, who told them they'd gone to the apartment to look for "Sam."  The police took them into custody, then went to the apartment and, when Durden answered, asked if "Sam" was there.  Durden said no, but since he matched the description of the male robber and "seemed scared," the officers handcuffed him and took him to the zone car for a further interview.  They asked him if they could search his apartment for "Sam," and he agreed (their story) or said "not unless I'm there" (his story).  They searched the apartment, found a gun and evidence that Durden was a convicted felon, so arrested him and charged him with weapons under disability.

A consent to search has to be voluntary, and there's case law saying that a consent following an illegal arrest isn't valid.  That might have been sufficient to void the search right there, because it isn't clear that the police had a basis for arresting Durden.  If the trial court had found that they didn't, that might have been worth a shot on appeal, although the prospects of getting the 4th-Amendment-friendly 8th District to agree with that are slim.

But the trial court found that Durden's store was the correct one, and that seals the deal; there's no way an appellate court will overrule a trial court's finding on that sort of a credibility dispute.  The prosecutor's office, apparently believing that they haven't lost enough search and seizure cases lately, appealed nonetheless, and their quixotic pursuit reaches its ineluctable end in State v. Durden.

For years, it was a common practice in Cuyahoga County for judges to sentence defendants in low-level felonies, especially drug cases, to the time they'd served in jail.  A common practice, that is, until the State started appealing them, and the 8th District held in State v. Eppinger that this was a no-no:  the judge "has discretion to impose either a sentence of imprisonment or community control sanctions," but she must do one or the other.

Maybe not.  In State v. Nash, the court revisits the issue.  The quote above from Eppinger actually was contained in a treatise on felony sentencing law, but Nash finds that, under RC 1.05,  "imprisonment" includes a jail sentence.  Nash also correctly concludes that the only purpose of putting somebody on community control sanctions is to ensure that he complies with the conditions of his sentence; "if there are no conditions" -- and there wasn't in Nash's case -- "there is nothing to supervise."  Nash represents a superior analysis of the law, and reaches a more practical result, than does Eppinger, but Eppinger is precedent in the district, and so the panel in Nash asks the court's administrative judge to submit the case for en banc consideration.  Stay tuned.

The third win for defendants last week, out of eight cases, comes in State v. Miller.  The police there respond to a call of "mental male or male high on drugs threatening to assault his mother," and when they arrive, one thing leads to another, with the result that when the officers attempted to grab Miller by the arms to restrain him, he began "flailing around."  One officer testified that during the ensuring struggle he was kicked in the legs and kneed in the stomach.

The court finds that Miller's conduct did not rise to the level of "knowingly" attempting to inflict harm.  The decision most likely should be limited to its facts:  the court notes that the defendant was "babbling incoherently, was mumbling, was in a highly agitated state" and had "mental health problems," and the result would almost have certainly been different had the officers sustained any sort of injury.  Still, the decision leaves open the argument that resisting arrest can't be elevated to a felony simply because the defendant flails around and makes contact with the officers.  Another point:  many "aggravated shoplifting" cases arise because of a defendant's attempt to avoid arrest.  One might argue that if "flailing around" with a police officer isn't sufficient to constitute an assault, flailing around with a security guard isn't sufficient to constitute the knowing use of force to constitute a robbery.

As indicated, that comprised the three wins for defendants last week.  But not for lack of trying, and some imaginative arguing.  In State v. Carner, Carner had gotten into a fight with his nephew over the former's drug use, and had brained him with a vase, then threatened other family members with a knife before bolting through the back door.  By that time, the police had arrived, and one of them, Officer Holstein, encountered Carner in a neighbor's driveway.  Carner was holding the knife, and resisted Holstein's repeated urging to drop it, charging Holsein instead.  So Holstein shot him.

Not fatally, of course, or you wouldn't be reading this.  Carner wound up being indicted on a dozen charges, including felonious assault of the officer, felonious assault of the nephew, and four counts of aggravated menacing and one of domestic violence of the family members.  None of them showed up as witnesses at trial, though, and so the prosecutor moved to dismiss the five of the counts pertaining to them, as well as the carrying concealed weapons charge.

At which point the defense attorney objected.  Crazy?  No, in what the opinion notes was "an unusual trial strategy," he wanted to argue that the State overindicted Carner in an attempt to cover up what he argued was Holstein's mistake in shooting Carner.  The trial court didn't buy it, and dismissed the charges, and further precluded counsel from arguing in closing that the dismissed counts proved an overindictment.  The appellate panel rejects the claim that the preclusion in argument was error, finding that this fell within the trial court's extensive discretion over oral argument.  The opinion does note, though, that there were self-imposed limits on counsel's strategy:

THE COURT: Well, by that argument you would object to a dismissal of the indictment in its entirety, wouldn't you?

[DEFENSE COUNSEL]: Of all counts?


[DEFENSE COUNSEL]: I would probably let that go by, Judge.



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