What's Up in the 8th
I went down to Mountaineer Casino in West Virginia this weekend for the Cleveland defense bar's annual outing. (A shoutout to Mark Stanton, this year's winner of the Lifetime Achievement Award.) A casino is one of the few places I can go into anymore where I lower the average age, and sure enough, just inside the entrance was some woman tethered by her room card to a slot machine, cranking it repeatedly as she took puffs off her oxygen tank, a sight I'm sure will be commonplace in some future dystopia. At any rate, one of the 8th District judges gave an excellent seminar on allied offenses. He told me later that he and the other judges enjoy my blog, and painted a picture in which they eagerly cluster around their computers each Tuesday morning to find out which ones have earned my praise and which ones my scorn.
As if.
Well, no scorn today. Last week criminal defendants got beaten like rented mules, but this week it was the State's turn to take it in the shorts, getting reversed in three of the five decisions. Let's take a look.
State v. Dowdy presents a problem that occurs too frequently: the defendant is referred for a determination of competency, but there's no official journalization of what the results of that are. Oftentimes, it's because the report comes back saying the defendant meets the minimal standards of competency -- i.e., is not frothing at the mouth, and understands the difference between the judge and a rutabaga -- but everybody's agreement that the guy isn't bonkers never makes its way onto the record. That can be overlooked if there's a report in the file and if the defense attorney doesn't re-raise the issue. And recent cases have held that where the defendant testifies and doesn't come across as a raving loon, a failure to make a formal finding that he's competent can be treated as harmless error.
Not so in Dowdy's case. His referral results in the clinic doctor saying he can't form an opinion, so they send Dowdy out for an inpatient competency evaluation. At the hearing some months later in which Dowdy pleads guilty to kidnapping and aggravated murder, and is sent to prison for 33 years to life, his attorney says that he was found competent, but that's the only mention of it in the record: there's no hearing, no subsequent letter from the doctors, no journal entry, no nothing. And that's not good enough, says the court, vacating the plea and reversing and remanding for the trial court to conduct a hearing on competency.
In a homicide prosecution, can a defendant who's arguing self-defense seek an instruction on the lesser-included offense of voluntary manslaughter? There are a number of decisions holding that he isn't, because the two defenses are contradictory. State v. Jefferson presents a twist on that issue: here, it was the trial court deciding to give the instruction, over the objection of the defense. The State tries to rescue the situation by resort to State v. Hill, where the court held that the trial court may give an instruction on voluntary manslaughter, even over the objection of the defense. That's because the threshhold determination for an instruction is whether it can be justified by the facts: if the facts would warrant a verdict of voluntary manslaughter, it should be given even if self-defense is an issue, too. The problem in Jefferson is that there wasn't anything to support voluntary manslaughter; there wasn't a shred of evidence showing that the defendant acted out of rage. Reversal No. 2.
No. 3 comes in delinquency case, In re K.S. He'd been charged with shooting into a house, and the primary evidence agaisnt him consisted of a statement by Taylor, a co-defendant. Shortly before trial, the State filed a motion, bewilderingly styled "motion in limine to call adverse and/or court's witness for purposes of cross-examination." This foreshadowed Taylor backing out of his statement, and sure enough, at trial he did. The court allowed the State to use leading questions and treat him as a hostile witness, then permitted the State to have the co-defendant read his entire statement, and admitted as evidence.
The resulting opinion is a nice primer on evidence. EvidR 611 allows a party to call a witness and use leading questions if the witness is "hostile" or "adverse." (The difference is that a hostile witness is one whose testimony surprises the examiner; an adverse witness is one identified with the opposing party. Understanding that distinction will win you a lot of bar bets.) As shown by the "motion in limine," the State wasn't surprised by Taylor's testimony -- more on that in a minute -- but he and K.S. were good buds, so the trial court was right in treating him as an adverse witness.
From there, though, things go south. Under EvidR 607, you can't impeach your own witness with a prior inconsistent statement unless you can show both affirmative damage and -- wait for it -- surprise. The latter didn't exist, so the statement couldn't be used. Even if it couldn't have been, it's impeachment material, not substantive evidence, and shouldn't have been admitted. The State could've prevented the problem by filing a pretrial motion to have Taylor called as a court's witness: under EvidR 614, each party is free to fully cross-examine the witness, which includes using prior inconsistent statements.
The State tries to rescue the situation by resort to EvidR 803(5), past recollection recorded. That doesn't work, either; the exception applies where the witness doesn't remember what happened, but wrote something down at the time which he acknowledges does reflect what occurred. Taylor's not saying that he didn't recollect what happened, he's saying that the statement he gave was false.
State v. Melendez provides my only quibble of the court's work this week. The case concerns an incident which began with a minor fender-bender, but escalated when Melendez recognized Flores, the driver of the other car, "as the woman who had been having a sexual relationship with her boyfriend, Pito." The escalation ended with Martinez braining Flores with a bottle, sending her off to the emergency room to be treated for a laceration and head and shoulder pains. The court repeats its numerous previous holdings that "when a victim's injuries are serious enough to cause the victim to seek medical treatment, it may be reasonably inferred that the force exerted on the victim caused serious physical harm." As I've mentioned before, this is bad law: a precautionary emergency room visit for the purpose of ruling out serious injury would have the legal effect of establishing the existence of one. The court backed off of this in State v. Clopton, the opinion there noting that the reference to seeking medical care in prior decisions was unnecessary: in each one, there was abundant evidence that the victim had in fact suffered serious injury. That's also true in Melendez, but the decision raises the possibility is that some earnest prosecutor, when he's not crafting nonsensical motions in limine, will persuade a judge to instruct a jury that it can find serious physical harm simply because the victim sought medical treatment.
Finally, we come to State v. Melton, which shows that while you should always listen to your mother, heeding your lawyer's admonitions isn't a bad idea, either. Melton involved his prosecution for assaulting a transit cop. See if you can pick out the key phrase from this portion of the court's opinion:
Melton, against his counsel's advice, testified on his own behalf. He admitted to drinking that day and stated he had an alcohol problem. He claimed his kicking of the officer was a reaction to being pepper sprayed. He admitted the video did not show he was pepper sprayed but concluded the officer must have done it in a secretive way so it would not show on the video. He testified he had been arrested "hundreds of times" by the RTA police and admitted he had three prior felonies for assaulting a peace officer.
See you tomorrow.
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