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Case Update

The police enter an apartment with a search warrant. Can they detain the occupant of the apartment while they conduct the search? It certainly makes sense to allow them to do that, and that's what the Supreme Court decided back in 1981 in Michigan v. Summers: it protects the officers, and prevents the occupant's flight if incriminating evidence is found.

The Court's going to be taking another look at Summers next term, when it reviews the 2nd Circuit's decision in US v. Bailey. (From here on out, when I do a preview of an upcoming Supreme Court case, I'm going to link to the SCOTUSblog page on the case, where you can download the lower court's opinion and the briefs.) There had been decisions stretching Summers - some holding that it was permissible to detain the occupant as he was leaving the premises - but Bailey gave that theory a real workout: as the police approached the apartment to perform the search, they saw Bailey leave, get into a car, and drive off; they stopped him a mile away. The 2nd Circuit's decision isn't way out there; three others have come to similar conclusions, while two have rejected the extension. Resolving those discrepancies is why the justices get the big bucks.

The Ohio Supreme Court didn't come down with any decisions this week, but instead of moaning about that, I'm going to do the same as I do for SCOTUS when it's out of session: focus on some upcoming cases that the Columbus Gang will be (eventually) deciding. One of those is State v. Craig, a death penalty case. (Links are to the court's docket.) The appeal presents fifteen propositions of law, but the eighth is perhaps the key one. The coroner who'd performed the autopsy on the victim had retired by the time of trial, so the State called the chief medical examiner instead, who testified about what the other coroner had put in his report. This raises a Crawford issue, and the court sua sponte requested supplemental briefing on that issue after the SCOTUS decision in Melendez-Diaz v. Massachusetts, then stayed briefing twice: once to await the decision in Bullcoming v. New Mexico, and again for the decision in Williams v. Illinois. The latter came down this past spring, so the briefs will be in by the end of the month. Expect a decision sometime next year.

In the courts of appeals...

In State v. Teegarden, the 2nd District holds that the trial court could require Teagarden to pay court-ordered child support as a condition of his community control sanctions for a drug offense... In Parma v. Zaccardelli, 8th District affirms that inmate filing speedy trial request under RC 2941.401 need only serve demand on prosecutor and court; need not include certificate from warden mentioned in statute... A good discussion of the constitutional requirements for a sobriety checkpoint are explained in the 11th District's decision in Ashtabula v. Presciano... A defendant's motion for bond reduction which does not affect the scheduling of the trial does not toll speedy trial time, the 2nd District says in State v. Hardy; several districts have ruled to the contrary...

Big one on HB 86 from the 5th District: in State v. Gillespie, the court holds that a defendant who committed a theft of more than $500 but less than $1,000 before September 30, 2011 - HB 86's effective date - but is sentenced after is not only entitled to a misdemeanor sentence, but to have the offense reduced to a misdemeanor as well... In State v. Hammer, the defendant was charged with assaulting a police officer, but the trial judge had suppressed the evidence of the assault, finding that the assault had taken place in the defendant's home after the officer had entered it without a warrant or exigent circumstances. The 2nd District reverses; "evidence of a fresh crime committed during or after an unlawful search and seizure is not properly regarded as deriving from the unlawful search and seizure," but "instead derives from the defendant's intervening voluntary criminal act"...

Jury instructions. It's relatively common for judges any more to not only orally instruct the jury, but to give them a written copy of the instructions to take into the deliberation room. The problems that can arise with that approach are demonstrated by State v. Ahmad: the written instructions told the jury to find the defendant guilty instead of not guilty if he'd established entrapment, omitted any instruction regarding his defense of abandonment, and failed to tell the jury how to proceed if it found that an affirmative defense was established. The defense hadn't been given a copy of the written instructions, and only discovered this when the jury asked a question regarding overt acts of a conspiracy. The 2nd District upheld the trial judge's denial of a mistrial, since the judge had explained the errors to the jury, and given them a corrected copy of the instructions.

But a note here for appellate attorneys: check the written instructions. If the jury hadn't come back with a question, this never would have been discovered, and obviously would have required reversal.

Today's lesson on evidence also comes courtesy of the 2nd District. In State v. Deaton, the judge had sustained objections to the defense attorney's questioning a key state witness about whether she was on medication presently or at the time of the incident. The State argued that this was improper under EvidR 607, which requires a questioner to have a "reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact." The court reverses, explaining that

the requirement of a good faith basis applies only when the cross-examiner is effectively asserting in the form of a question the truth of a factual statement included within the question. If the cross-examiner is merely inquiring whether something is or is not true, a good faith basis is not required. Thus the question, "Your glasses were being repaired at the time of the accident, weren't they?" requires a good faith basis, while the question, "Were you wearing your glasses at the time of the accident?" does not.


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