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Case Update

The Supreme Court's next term opens less than a month from now, with oral arguments in two cases, one of which is Lozman v. City of Riviera Beach. The issue presented is

Whether a floating structure that is indefinitely moored, receives power and other utilities from shore, and is not intended to be used in maritime transportation or commerce constitutes a "vessel" under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction.

The next day comes the argument in United States v. Bormes. It's not a criminal case, as you might expect from the caption, but one involving the application of 28 USC 1346, also known as the Little Tucker Act, for reasons one can only imagine. As you might guess, I'll be all over those cases like a cheap suit, which, for those who know me, is a remarkably apt metaphor.

One criminal case from Columbus, State v. Hobbs, which presents the question of whether a person acting as both deputy sheriff and deputy clerk of a municipal court in the same county is a "detached and neutral magistrate" for purposes of issuing an arrest warrant. The answer, of course, is no, but the rarity of the situation is topped off by the fact that it didn't matter: the police obtained a full confession from Hobbs before the warrant was issued, so there was nothing to suppress.

In the courts of appeals...

Several interesting decisions on allied offenses. If you sell cocaine to an undercover cop, you can be charged with both possession and trafficking, but they'll merge as allied offenses. What if you try to sell cocaine and heroin in the same package? The defendant in State v. Heflin pleads to one count of possession for each drug, and tries to argue that those are allied offenses, but the 6th District isn't buying it; different drugs result in separate counts. In State v. Miranda, the defendant pled to a violation of Ohio's RICO statute and drug trafficking, resulting in a six-year prison sentence for the former and eight years for the latter, run consecutively. He contends on appeal that the offenses were allied and should have merged, but the 10th District rejects the argument. The focus of analysis of the allied offense issue is whether the legislature intended for cumulative punishments, and the court holds that the statute, RC 2941.25, isn't the only expression of legislative intent. The Supreme Court had previously held that the purpose of the statute was "to impose cumulative liability for a criminal enterprise," and that's enough to allow punishments for both engaging in corrupt activity and the predicate offenses.

One of the issues complicating allied offense law is exactly what constitutes the "same conduct," especially deciding when one conduct ends and the other begins. Last week, in State v. Brewer, the defendant who'd been convicted of breaking into a gas station and stealing cigarettes argued that his convictions for breaking and entering and theft should have merged. The 3rd District found that the conduct in breaking and entering ended when Brewer broke into the store, and thus the two weren't allied. Other courts, though, like the 8th District in State v. Laceavera, have held that the analogous offenses of burglary and robbery are allied. I think there's a good chance that the emerging split on that issue could lead to a needed Supreme Court review of the state of allied offenses since it created the new test in State v. Johnson almost two years ago.

Although the new CrimR 16 was intended to allow open discovery, there are some exceptions, one being where the prosecutor certifies that releasing names and addresses of witnesses may harm them. That's what happened in State v. Powell, but the defendant's appeal from that issue is hampered by the fact that transcript of the required hearing on nondisclosure was provided. The 1st District then rejects the defendant's three attacks on the constitutionality of the rule: that it allows withholding of exculpatory evidence in violation of Brady (there was no showing that exculpatory evidence was withheld), that it violates the Confrontation Clause (the witness was cross-examined), and that it violates his right to effective counsel (no showing that non-disclosure diminished counsel's effectiveness).

Back in State v. Farris, the Supreme Court seemed to create a "trunk" exception for automobile searches, holding that the smell of burning marijuana didn't create probable cause to search the trunk of a vehicle. As the 5th District explains in State v. Bonham, that's only for burning marijuana, on the understandable theory that one is unlikely to smoke marijuana while riding in the trunk of a car, although some of the people I went to college with might dispute that. But in Bonham's case, the smell of raw marijuana leads to a search which discovers several packages of marijuana hidden behind some bags in the trunk, and another Bullshit Traffic Stop of the Week™ -- Bonham was stopped on I-71 for a marked lanes violation -- results in a 2-year prison sentence.

Back to the future. Twenty years, Abdul Awkal walked in to the domestic relations courthouse in Cuyahoga County for a meeting with his wife at the Family Conciliation Services office. Some conciliation; Awkal pulled a gun and killed his wife and her brother. He was convicted and sentenced to death, but the governor granted him a reprieve a few days before his execution in order to allow a common pleas judge to determine whether Awkal was competent. The judge found he wasn't, and last week, in State v. Awkal, the 8th District dismissed the appeal, holding that the State had no right to appeal the issue. I'd discuss the issues in more detail, but we'll wait until the Supreme Court decides this, because it surely will.

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