What's Up in the 8th
A dozen criminal decisions from the 8th District last week, the opinions comprising 171 pages. How do I get through all of that to write this post? Well, it's a lot easier when they begin like this:
Appellant, Maurice Jackson, brings his sixth appeal concerning his convictions for rape and kidnapping stemming from an April 9, 2000 incident involving the forcible rape of a child under the age of 13. Appellant now claims that the trial court erred in denying his third motion to withdraw his guilty plea.
Lexis, Westlaw, and other case reporting systems use "key words" to tell you what's important about a decision. In this one, the key words were "sixth appeal" and "third motion." If you know anything about appellate law, you know that our old friend Ray Judicata is going to be making an appearance, and you needn't read further to find out when he arrives.
Other cases require more work. And occasionally, one will require a lot of work, because the court comes up with something so bizarre I'm forced to actually look up the law, and read even more cases. That happens with State v. Strothers.
When I began reading the decision, I thought it mainly offered me the opportunity to wax sarcastic. (Me, sarcastic? Imagine your surprise.) It involved the investigation of a brothel, known in the neighborhood as "the Chocolate Factory" or "the Batcave," where the price for "full service" was $69.99. (Wouldn't $69.69 been even more clever? And if you're interested in what "full service" is, get on with your bad self and read the opinion.) And there are more yucks with the first assignment of error, manifest weight. But then I get to the second assignment of error, which is that the trial court should have granted the motion to suppress evidence. The court refuses to consider it, because Strothers neither designated the ruling on the motion to suppress in the notice of appeal, nor filed a separate appeal from it.
Not to put too fine a point on it, but this is simply wrong. As the Staff Notes to AppR 3 indicate, "when a final judgment or order is entered in a case, all interlocutory rulings are merged into it." As the 11th District explained last year in Arndt v. P&M Ltd., "under the merger doctrine, interlocutory orders are merged into the final judgment, and thus, an appeal from the final judgment includes all interlocutory orders merged with it." The Strothers court cites four cases in support of its conclusion; all of them involved an order separate from the final entry, requiring a separate appeal. Last year in State v. Wright, for example, the defendant filed a notice of appeal from his sentencing entry, then filed a motion to withdraw his plea, which was denied a week later. He assigned an error for that, but the court correctly noted that his failure to amend the notice of appeal, or file a separate notice, doomed that argument. In short, when you appeal from a final judgment, you don't have to cite a ruling on a motion to suppress separately, any more than you have to cite a ruling on an evidentiary point during trial.
The court does consider the merits of two suppression rulings, one involving a search and the other a Miranda issue. The first, State v. Smith, provides a primer for those interested in the burgeoning field of heroin trafficking: "one particular way heroin can be packaged for sale is in small packets of blue wax paper called 'bindles,' which are rubberbanded together in groups of ten and referred to as 'bundles.'" Armed with that knowledge, and info that Smith is dealing, police approach him as he's exiting a building. He smells of alcohol, seems "nervous," and "continued to feel the left side of his pocket," so the cop pats him down, feels objects in his pocket that were "squared and rectangular." The cop brushes asied Smith's claim that this is money, reaches in and finds bindles and bundles galore. The trial court didn't find the cop's testimony credible, and decided that once it became clear that Smith didn't have a weapon, the search should have stopped. The court defers to the trial judge's credibility determination, as it should, but questions linger, mainly why there's no mention anywhere in the opinion of the "plain feel" doctrine, which is what the case is actually about.
State v. Montague contains a curious omission as well. Montague's husband was arrested for digitally raping their daughter, an incident which Montague had denied when she was initially confronted by the police. According to the police, Montague asked to be taken to the police station the next day to see her husband, and when she got there, she was taken to a conference room and interviewed by a detective and a social worker. She was assured that she was not a suspect, but during the course of the interview made statements which resulted in her being charged with obstruction of justice.
The question, of course, was whether she was entitled to be advised of her Miranda rights. The court's opinion does an excellent job of reviewing the law in this area: a custodial interrogation is one in which the defendant is not free to leave, and thus Miranda warnings are not required where the suspect goes voluntarily to the police station, is not physically restrained, and is not subject to coercive tactics during the interview. From the facts the court recites, it probably gets it right, but one question lingers. In a number of the cases cited by the court, the suspect was either told she was free to leave at the beginning of the interview, or allowed to leave afterwards, and there's certainly no better indication that a person's not in custody. Montague was not told that she was free to leave, and nowhere is it mentioned whether she was allowed to do so after the interview.
State v. Tate will certainly be the subject of an alert memo from the prosecutor's office. Tate claims his conviction of domestic violence resulted from his attorney's ineptitude. If patriotism is the last refuge of the scoundrel, ineffective assistance claims seem to be the last refuge of the appellate attorney, too often being nothing more than Monday morning quarterbacking on how a witness should have been cross-examined, or contending that objections to leading questions would have somehow changed the outcome. This appeal is all that, and worse, and the court easily dispenses of those arguments. One of them, for example, is that Tate's attorney shouldn't have stipulated to his two prior convictions of domestic violence, which elevated this offense to a third degree felony; the court notes that this is "widely recognized as a practice which benefits defendants by precluding the state from introducing evidence as to the details of the prior convictions."
The court then, on a plain error analysis on an issue not raised in the appeal, reverses the convictions for felony domestic violence and reduces it to a misdemeanor because it finds that Tate stipulated only to the authenticity of the journal entries of the prior convictions, not that he was the person convicted. As the court rightly notes, the journal entries aren't sufficient; the State must prove that the defendant is the same person those entries refer to. It's not clear exactly what Tate stipulated to -- a stipulation as to authenticity of the entries isn't necessary, since a certified copy is self-authenticating -- but you better believe that from here on out, prosecutors here are going to take a good bit more care in crafting such stipulations.