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What's Up in the 8th

Four years ago, in District of Columbia v. Heller, the Supreme Court held that the 2nd Amendment created an individual, rather than collective, right to bear arms.  When the decision came down, I and several other commentators made various predictions about how it would herald a revolution in firearms regulations, with courts striking down laws which infringed upon the new-found fundamental right.  As I acknowledged here, those predictions weren't exactly borne out.  In fact, they weren't at all borne out; other than a case here in Cuyahoga County involving whether a 20-year-old misdemeanor drug conviction could disqualify one from ever having a gun (case discussed here; the state later dropped the appeal), courts have gone along as though Heller was never decided.

Doesn't mean lawyers have stopped trying, though.

They did in State v. Hudson.  Hudson's first name is Riodejuonerol, and there's a lingering suspicion that his parents wanted to name him after the Brazilian city but were too lazy to look up how to spell it.  At any rate, Hudson returned home one day to find his neighbor, Mario Seaborn, who was drunk.  Seaborn yelled profanities at Hudson, the two fought, and Hudson went inside his house.  He came back out with a knife, and the fight was renewed, coming to a hasty conclusion when Hudson stabbed Seaborn in the neck.  Seaborn died five months later, and Hudson appeals his conviction for murder.


Only two notable aspects about the opinion, the first being Hudson's reliance on Heller.  How so?  Heller involved a gun, this involved a knife...  But, the appeal argues, Heller now makes it unconstitutional for the law to require the defendant to carry the burden of proving self-defense.  I'm not quite seeing the connection, and neither does the court.  The same argument had been advanced last year in State v. Warmus, discussed here (scroll down), but at least Warmus had a gun.

The other notable aspect of the case is that the alcoholic beverage Seaborn was drinking, which the opinion identifies as Four Loko, also makes an appearance in State v. Bowman.  Bowman, a paranoid schizophrenic off his meds, grabbed a woman at a bus stop, pulled out a knife, and began swinging it at her.  Another woman pulled her out of the way, and she ran off.  The police came a few minutes later, found Bowman at the bus stop, heavily intoxicated, and brought the victim to the scene, helpfully telling her that "I think we have him in the car" before showing her Bowman, sitting in the cruiser.  Unsurprisingly, she identified him as her assailant.  While there's plenty of law holding that a "cold stand" -- showing the suspect individually to the witness -- is inherently suggestive, and this particular one is about as suggestive as it gets, the court nonetheless finds it to be sufficiently reliable.  The other noteworthy point in Bowman is that a defendant cannot benefit from the provision of the kidnapping law which reduces the crime from a first degree felony to a second when the defendant leaves the victim in a safe place unharmed if the victim escapes.

I'd never heard of Four Loko before, and I'm tempted to suggest that its twin appearances in the cases this week, as being the favored beverage of a dead man and a paranoid schizophrenic, disproves the adage that there's no such thing as bad publicity.  Then again, I'm not exactly the demographic that Four Loko is catering to, and the demographic it is catering to, I'd wager, doesn't spend much time reading court opinions.

The court's major opus comes in State v. Johnson, and it's worth an extended look.  The police get a call that shots are fired from an AK47 assault rifle inside a house, and speed to the scene.  When they arrive, they're told by dispatch that Johnson is a possible suspect, that a brown Oldsmobile may be involved, and that there are more assault rifles inside the house.  The woman in the downstairs unit tells them that Johnson had just run from a black car to the upstairs unit, where he lived.  The officers saw a light come on upstairs, but their knock on the door went unanswered.  At that point, the dispatcher told them that the original caller, who'd remained on the line, told them there was a dead body and drugs in the house, and so the police forced their way into the home.

Drugs, yes; dead body, no.

The trial court found that exigent circumstances justified the warrantless entry, and the court spends a number of pages dealing with the law in that area.  But the legal analysis, while extensive, is superficial.  For example, almost half a page is devoted to a quote from another opinion, but the payoff is only that there is such a thing as an exigent circumstances exception to the warrant requirement.  Next we are told that the officers' subjective motivations don't come into play, but we know that, too; 4th Amendment issues are determined from the officers' objective viewpoint, not their subjective one.  Finally, the smorgasbord is rolled out:  a seven-part test to determine whether exigent circumstances exist, such as the gravity of the offense, that the entry is made peaceably, the time of the entry, and so forth, this one meeting that test, although several of the parts seem iffy at best.

Let's go back to that "objective viewpoint" of the police officers:  the real issue in the case is whether the police had probable cause to believe that exigent circumstances existed.  This is a much dicier proposition.  Although the court emphasizes that the call was a "Code 1, which is the highest priority call, for shots fired with an AK-47 semiautomatic rifle," the evidence that shots were actually fired is skimpy:  the police didn't hear any, and if the downstairs neighbor did and told the police, it goes unmentioned in the opinion.  In fact, the court's willingness to conjure something more out of this is indicated by its treatment of what the downstairs neighbor had told the police:  "she had just seen defendant running upstairs from a black vehicle, which 'somewhat matched the color of a brown vehicle that the caller had stated was on the scene.'"

That's not to suggest the result is wrong; the court does point out that the initial caller "identified himself and his phone number" and remained on the line throughout.  The court was thus on firmer grounds in rejecting the defense's argument that the information was unverified, and at least raising the inference that the court would have found otherwise if it had been an anonymous call.  Again, the right result, but the analysis could have been a bit better.


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