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What's Up in the 8th

All defendants have the right to remain silent, but some just don't have the ability.  Put Kevin Hamilton in that category.

Hamilton stood accused of aggravated robbery, and at trial testified that the alleged victim made up the story because he was upset over a marijuana deal gone sour.  He argued that the prosecutor committed misconduct by pointing out in closing that when he spoke to the arresting officer, Hamilton had made mention of any such deal, but had instead denied ever talking to the victim, or even knowing him.  As the court notes in State v. Hamilton, while the use of defendant's silence for impeachment after he's received Miranda warnings violates his rights, there's a distinction between not talking to the police, and talking with them while choosing to omit certain facts:

A defendant who chooses to talk has not relied on that promise that silence cannot be used against him with respect to what he talks about.  If a defendant voluntarily offers information to police, his toying with the authorities by allegedly telling only part of his story is certainly not protected by Miranda.

Hamilton may have lost the war, but he did win a few battles.  The gun Hamilton allegedly used wasn't found, so the State introduced testimony from two witnesses saying they'd seen Hamilton with one eight days before.  The prosecutor argued that this was 403(B) evidence showing "opportunity," but the court explains that the evidence was too remote in time for that.  It shouldn't have come in, but it's harmless error, and Hamilton will have seven years in prison to contemplate the wisdom of taciturnity when confronted by The Man.

Another prosecutor loses an argument, and the case as well, in State v. TilleyTilley was charged with beating his pregnant girlfriend.  During a break in trial, two police officers and the victim advocate told the prosecutor that Tilley's uncle, who'd been sitting in the back of the courtroom during the victim's testimony, had been relaying information about the victim's testimony to two upcoming defense witnesses.  The prosecutor reported this to the judge, claiming that it violated the order for separation of witnesses, and asked the judge to exclude the testimony of the witnesses.  The judge declined, but had the uncle arrested, and told the attorneys he'd have a hearing after the evidence was in to determine whether the uncle had improperly given information and, if so, he'd instruct the jury to take that into account in gauging the witnesses' credibility.  The prosecutor, though, cross-examined one of the witnesses about whether the uncle had told her about the testimony, and even asked she was present when the uncle was "arrested for that."

The court notes that it's "improper for an attorney, under the pretext of putting a question to a witness, to put before a jury information that is not supported by the evidence."  Last year, in State v. Hicks (discussed here), the 8th reversed an aggravated murder conviction on that basis, because the prosecutor had asked a defense expert if he knew that other defense witnesses had been coached by Hicks' attorney.  This is a bit different; the court in Hicks noted that the prosecutor never brought the alleged witness-tampering to the trial judge's attention, and never presented any evidence of it afterwards.  Here, though, the prosecutor did bring it to the judge's attention.  The court found error in her not abiding by how the judge intended to resolve the issue, and also indicated, as it had in Hicks, that the court's failure to sustain defense objections to the questioning or give a curative instruction worsened the problem.

The State finds a rare win in a search case in State v. SandersSanders had been stopped for speeding, the cop found he had an outstanding traffic warrant and arrested him, then searched the car and found drugs.  Sanders claimed that the prosecution had to provide the warrant at the suppression hearing, relying on cases which hold that, when an investigative stop is based on a police dispatch, the State has to give some evidence about the underlying facts for the broadcast.  That makes sense -- we don't want cops stopping people because some crank neighbor makes an anonymous call telling the police they're hauling drugs -- but that doesn't have any application here:  this wasn't an investigative stop based on a broadcast, it was a traffic stop based on the officer's observation of a traffic violation.  Still, the court acidly notes that had the prosecution presented the warrant, "this simple step would have disposed of several of appellant's arguments on appeal."

Focus then turns from the stop to the search, with the state arguing that there was probable cause to search, and the court rejecting that on the basis of Arizona v. Gant.  As in Gant, Sanders was secured in the cruiser at the time of the search, and there wouldn't be any evidence of a speeding violation in the car, so no probable case to search it.  The car, though, was stopped on the median of a major highway, there was nobody else to drive it, and so the court, with some concern about the motives and intent of the officer, reluctantly finds that the inventory exception would apply, and upholds the search.

Finally, some good work in State v. ChopakChopak, who was white, was convicted of aggravated menacing and ethnic intimidation for an incident involving a neighbor, Kimyatta Fuller, who was black.  The incident was the culmination of several prior confrontations, and in this last one, Fuller had gone to another neighbor's house, where Chopak happened to be eating dinner, to berate him about some previous slight.  Chopak left and returned to his house as Fuller followed and continued to harangue him, until finally Chopak turned, pulled out a small knife, and told Fuller, as recounted in the opinionm "I will f------ kill you and slit your throat, you f------ n-----."

Ethnic intimidation requires proof that a defendant committed the underlying crime -- in this case, aggravated menacing -- "by reason" of the other person's race, color, or religion.  It would have been easy for the court to reduce the case to a simple arithmetic formula:  menacing + racial slur = hate crime.  The court, laudably, avoids that, noting that Fuller had instigated the incident, then escalated it to the point that Chopak, not unreasonably, reacted with anger.  Although it finds Chopak's use of the "N-word" offense, the panel cites a 2nd District case which held that "repugnant or obnoxious language does not, in itself, demonstrate than an action was undertaken 'by reason of the victim's race,'" and concludes, "here, it is apparent that the threats Chopak made were prompted by Fuller's conduct and not 'by reason of' her race."  The correct decision and, at this particular time, a gutsy one.

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