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What's Up in the 8th

Apparently, some time back the cops in Cleveland stopped searching, defendants stopped committing multiple offenses which might be deemed allied, and judges stopped handing down consecutive sentences, because once again there are no 8th District decisions on any of those. The court does take on two big evidentiary issues, with mixed results.

The case against Walter Morgan hinged largely on the testimony of Officer Kenneth Wohleter. Someone had loaned their car, a Ford Focus, to Morgan, and shortly thereafter, Wohleter saw a Ford Focus run a stop sign. He tried to pull it over, but it continued for another mile or so, during which time Wohleter saw the driver heave a baseball-sized object out the passenger window. The chase ended when the driver slammed on the brakes, bailed out of the car, and fled.

The cops didn't capture the driver, but did find the "baseball-sized" object which, to no one's surprise including yours, turned out to be a packet containing about 38 grams of crack. The car registration led them to the owner, who told them about giving the car to Morgan, and the deal was sealed by Wohleter's testimony that he'd gotten a clear look at the driver's face when he'd exited the car, and that it was Morgan, whom Wohleter ID'd in court as well.

One problem. Although Wohleter testified that he told that to the officer who made the police report, the report makes no mention of it. That became the focus of Morgan's appeal, but in an odd way. During their deliberations, the jury asked twice to see the report; defense counsel wanted to let them, but the trial judge didn't, and guess who won. While police reports are normally excluded from admission by EvidR 803(8), they can be admitted if offered by the defendant. So the appeal, in roundabout fashion, argues that the judge should have admitted it. (Although the opinion seems to indicate that counsel also sought admission at the close of all the evidence.)

The appellate panel's response in State v. Morgan to this argument is two-fold. It begins by noting that what the lawyer was attempting was impeachment by prior inconsistent statement, under EvidR 613, but then decides that Wohleter's testimony wasn't inconsistent with his statement, because the report was silent as to his claimed identification. This isn't correct; an omission, if significant, can serve as a contradiction, too, and the failure of the report to mention that an officer had observed the suspect might well be sufficiently significant. The second reason ventured by the panel is that counsel didn't lay a proper foundation for admission of the report because "he failed to establish that the police report was generated pursuant to any duty imposed by law"; "he questioned Officer Jones to establish that Officer Jones wrote the report, but did not question him regarding any obligation." That's silly: is there any question that Jones prepared the report because of his obligation to do so? Probably the correct result, given the trial court's discretion in admitting evidence and the likelihood that any error here was harmless, but it would have been easier to write the opinion that way.

The court tackles the co-conspirator exception to the hearsay rule in State v. Gordon. The court cites an earlier decision, State v. Braun, which tells you what you need to know about the requirements of that rule:

The proponent of the statement must establish: (1) the existence of a conspiracy; (2) the defendant's participation in the conspiracy; (3) the declarant's participation in the conspiracy; (4) that the statement was made during the course of the conspiracy; and (5) that the statement was in furtherance of the conspiracy.

Gordon, whose nickname was "Magic," was alleged to be part of a marijuana distribution outfit, and the offending testimony came during the direct examination of one of the other participants: he was allowed to tell the jury that when he asked another co-defendant (who didn't testify) where the marijuana came from, he said it was from Magic. The appeal's argument that the State hadn't established a prima facie case of the existence of the conspiracy at this juncture falls on deaf ears, the majority noting that several others had testified to its existence at that point.

But take a look at that last requirement, that the statement was made in furtherance of the conspiracy. That's what the dissent does, citing numerous cases which hold that statements which merely point the finger at other alleged participants aren't "in furtherance of" the conspiracy, and that "when the out-of-court statement is one made by a co-conspirator purporting to implicate others in an unlawful conspiracy, its reliability is doubly suspect." The majority dismisses this by noting that the statement "did not exculpate" either the testifying co-defendant or the declarant, and while that's true, I found the dissent's arguments more persuasive.

When reviewing cases, I often skip over the factual recitation and go right to the assignments of error, and I wish I'd done that in State v. Hussing. Hussing and her husband had pled guilty to attempted involuntary manslaughter, based on their failure to seek medical treatment for their 8-year-old son, Willy, who died of Hodgkins lymphoma. The appeal argues that the trial court erred in imposing the maximum sentence of eight years - the futility of that argument will become apparent shortly - but centers mostly on the trial judge's allowing expert testimony by a doctor at the sentencing hearing, and for allowing Children's & Family Services to give a victim impact statement about the effect of the child's death on his siblings. The legal lesson here is that whatever restrictions there are in what may or may not be said at trial, those rules are greatly relaxed at the sentencing hearing.

And especially under these circumstances. The Hussings had contended that they had no idea that their son was ill. The opinion spares no detail putting the lie to that. Not just the doctor's testimony that the autopsy showed Willy had tumors on every organ of his body and would have been in serious pain. Testimony by the mother's sister that it was so painful for Willy to walk that he couldn't climb the stairs to go the bathroom on the second floor, testimony by the boy's cousin that Willy would urinate in a milk jug instead, testimony by the mother's brother that when he saw a lump the size of a softball on Willy's neck, he told Mussing she should take the boy to the doctor, only to be told, "Mind your fucking business. They're my kids and I'm raising them." When the sister offered to take Willy to a doctor and pay for it herself, Hussing similarly replied, "You need to mind your own fucking business and stay the fuck out of mine." When the sister last saw the boy, he was pale, had blue circles under his eyes, and complained that his legs and stomach hurt.

One of the problems with statements at sentencing hearings is that they're usually untested by cross-examination; the defense chose not to ask any questions of the doctor. But one comes away from reading the opinion with the feeling that while the Mussings certainly aren't at the top of the list of people you'll see in Hell, they're somewhere on there.


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