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What's Up in the 8th

Maybe it's something the water around here.  Three years ago I told you about the case of State v. Majid, in which the 8th reversed a murder conviction because numerous jurors dozed off during the proceedings.  There was ample evidence of this -- e.g., the trial judge's observation, "Let the record reflect that Mr. Brown is asleep again with his mouth agape, snoring as well" -- and the court found this to be a violation of the defendant's due process right to a jury that was at least semi-conscious.  The somnolent juror rears -- or drops, I guess -- his head again this week in State v. Allen.  The defense identified two jurors as the culprits, but the trial court removed only one, allowing the other to remain on the panel "after determining that [the juror] was not sleeping."

The defense objected only to those two, so, the court tells us, "any allegation of additional sleeping jurors is waived absent plain error," which exists "only where results of trial would have been different without the alleged error."  A nit to pick:  this is the wrong test.   What the court should have said is that there was no evidence in the record of other sleeping jurors.  If there was, regardless of whether the defense objected to it -- they didn't in Majid -- it seems that you wouldn't have much trouble showing that the results of the trial would've been different in front of a panel that hadn't decided to pack it in and take a road trip to Dreamtown.

The court does some excellent, and significant, work in State v. GriggsThe case began at a bar, as so many do, when Griggs approached a woman named Jamille.  The opinion notes that there had been a romantic relationship between the two, but there was "a dispute about whether the romantic relationship was ongoing."  Been there, done that, got the t-shirt.  In any event, Griggs' entreaties to resume the affair, coupled with some physical groping, impelled Jamille to take out her cell phone and call 911 to report she was being harassed.  At that point, Griggs grabbed the phone from her hand and walked away, later returning the phone to her front porch later that night.  In a bench trial, Griggs was acquitted of gross sexual imposition, but convicted of third degree felony robbery.

That offense requires proof that the defendant "used or threatened the immediate use of force against another."  Several years ago, I wrote about a 2002 8th District case, State v. Eskridge, where the defendant had reached across a counter, pushed the clerk's hand away, and grabbed some money from the cash register.  The 8th reversed the robbery conviction, concluding that the force required by the statute had to be sufficient to pose a danger of physically harming the victim, or causing fear.  The Griggs court follows Eskridge and a 1984 8th District decision, State v. Ballard, distinguishing "purse-snatching" cases cited by the State, finding that those all involved actual physical harm or at least the prospect of it.

Griggs and a case decided a month ago, State v. Miller, offer an interesting combination for those defending "aggravated shoplifting" cases, those in which some rummy gets into a tussle with a security guard while trying to walk out of a Walmart with a shopping cart full of its finer wares.  Miller, discussed here, reversed a conviction of assaulting a police officer, finding the evidence insufficient where the the defendant had been "flailing around" in reaction to the officers' attempt to arrest him; the court determined that this wasn't enough to prove that the defendant had "knowingly" attempted to inflict harm.  So getting back to the rummy wrestling with the security guard, if he simply tries to break away without causing or attempting to cause any injury, Griggs might absolve him of the force element for robbery, and if he does make inadvertent contact -- the defendant in Miller had kicked one of the officers in the shins -- Miller might absolve him of "knowingly" causing harm.

The court revisits the issue of competency in State v. Macon.  On the day of trial, defense counsel asked the judge to refer Macon for a competency determination, noting that Macon had only a 5th grade education, which impeded the attorney's ability to work with him.  The judge did so, then continued the case twice more to get the report, but there's nothing in the record to indicate that one was received.  The case proceeded to trial without any determination having been made that Macon was in fact competent, and he wound up being convicted of child rape and given life without parole. 

The 8th has reversed on numerous occasions when the trial judge failed to make a determination of competency after it was raised, but the opinion notes that while a hearing is mandatory in those circumstances, the error can still be harmless "where the record fails to reveal sufficient indicia of competency."  That, the court concludes, is what happened here; counsel never raised the issue again, illiteracy alone is not an indication of incompetency, and "nothing about [defendant's] testimony in direct and cross-examination suggested he was incompetent to stand trial."  Somewhat troublesome facts, especially given the LWOP sentence, and the dissent makes some good points, but the majority's analysis is a thoughtful one.

In State v. Williams, the court wrestles with another question:  admissibility of evidence of the character of the victim in a homicide case.  (Full disclosure:  I handled the appeal.)   In Williams' trial for murder resulting from a melee involving several motorcyle gangs, the prosecutor asked one of the witnesses "what kind of guy" the victim, eliciting the anticipated answer, "he was a good guy."  A good guy with six prior felony convictions, it turned out, and the defense argued that this opened the door to their admission.  The court affirms the trial judge's determination that the rules of evidence limited admissible evidence about the felony convictions to opinion testimony about reputation or character, rather than specific instances of conduct.  EvidR 405, though, allows cross-examination on specific instances of conduct, and somewhat bewilderingly, the 1994 case cited in the opinion in support of its holding on this score actually holds the opposite:  there, the defense opened the door, and the court affirmed the prosecution's use of specific instances of conduct in response.

More troubling is the court's handling of a second issue.  Williams had testified that he'd seen the victim cut someone with a knife on a prior occasion, but the court refused to allow that person to testify because it was "cumulative."  That's nonsense, of course; a jury might well discount the defendant's testimony on that score as self-serving, but would have a harder time dismissing the independent testimony of the person who was actually cut.  In fact, there's a 1931 Ohio Supreme Court case right on point, coming to that very conclusion, but the court ignores it, instead relying on cases which hold that corroborating evidence is not permissible on this point.  This gets back to the admissibility of evidence of specific instances of conduct again, and here, the court makes a fundamental error:  while specific instances are not admissible to show merely that the victim had a propensity toward violence, they are admissible to show the defendant's state of mind -- i.e., the reasonableness of his fear of death or great bodily harm.  This is a confusing area of law, and the opinion does not serve to clarify it.

Not that I'm bitter or anything.

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