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What's Up in the 8th

Weird week in the 8th.  The court did not hand down any decisions on sentencing, plea withdrawals, searches, evidentiary issues, or allied offenses; I can't remember the last time one of those wasn't featured.   It did hand down a decision on one of the most unusual procedural questions I've seen arise in a criminal case.  And,as I pointed out last week, alcohol makes a frequent appearance in the 8th's opinions (consumption by defendants, that is, although there's been a time or two... no, we won't go there), and while the 8th's body of work for this week is bereft of the usual legal issues, our old friends Johnny Walker and Jim Beam drop by.

Everybody should have a role model, I suppose, and I'm guessing that Desmond Lewis' is Mike Tyson.  The court's opinion in State v. Lewis begins, "after an evening of drinking at several bars, Lewis and several other people went to the home of Jamal Davidson to continue drinking."  At some point in the festivities, Lewis and a man named Keith Brown "got into a verbal argument, which turned physical."  Who could have seen that coming, huh?  The upshot is that Lewis bites off the top part of Brown's ear, and finds himself convicted of felonious assault.  He had claimed self-defense, and his major argument on appeal is that the trial court shouldn't have instructed the jury on his duty to retreat, since he wasn't the aggressor.  The court affirms, finding that the jury could have concluded that he was in fact the aggressor.

But there are some missed points here.  First, whether Lewis was the aggressor doesn't normally negate the duty to retreat:  one might not be the aggressor, but still have a duty to retreat; those are separate elements.  More problematically, though, this was a case of non-deadly force, and in that instance, there is no duty to retreat.  In short, the real claim should have been that the judge instructed the jury that Lewis had a duty to retreat, when he didn't.  There was no objection to the instruction, so it's reviewed only for plain error, and the evidence doesn't help Lewis, but arguing that the judge incorrectly instructed the jury on the elements of the defense seems to have more legs than the argument which was actually made.

Deonte Wilson's case doesn't make sense on several levels.  He meets and befriends a stripper, Katelyn Kovac.  One night he shows up at the club wearing a brown zip-up hoody and brown sweatpants, unusual because Katelyn had always seen him in "expensive designer clothes."  He left about 45 minutes before she did, she stopped by the grocery store on the way home from work, and when she got to her apartment building, a man with a gun grabbed her, stole her purse and groceries, and ran away.  (Her groceries?  Yes, her groceries.)  The man, of course, was wearing the brown hoody and sweatpants, and so Deonte found himself on trial for aggravated robbery, with a three-year gun spec, and weapons under disability, the latter stemming from his previous conviction for robbery.

And that's where things really got strange.  After the victim testified, Wilson and the trial judge entered into a lengthy colloquy "without the aid of defense counsel," with Wilson expressing concern about the effect his prior conviction would have on the jury, when it was introduced to prove the weapons under disability charge.  The attorney indicated he hadn't told Wilson he could have the charges bifurcated, with the jury deciding the aggravated robbery charge and the judge deciding the weapons charge.  Wilson said if he'd known this, that's what he would have done, so the judge declared a mistrial.  At that point, "the court and defendant -- without the aid of counsel -- continued their discussion on the record about how to proceed."  Wilson decided to waive the jury on both charges, the judge vacated the mistrial, and the trial continued from the point it left off, presumably with the aid of defense counsel.  Wilson is convicted, his appellate lawyer concedes that the case is "highly unusual" - try finding precedent for that one, lawyer boy - but in State v. Wilson, the court affirms, finding that the record demonstrates Wilson's waiver was voluntary, knowing, and intelligent.  Well, two out of three, anyway.

Clifton Onunwor was convicted of killing his mother back in 2008, and his conviction was affirmed two years later.  Last week, in State v. Onunwor, his bad luck with the courts continues, the 8th District this time affirming the denial, without a hearing, of his petition for post-conviction relief, because of what was and wasn't in the record.  He argued that the prosecutor engaged in misconduct, and his trial attorney was ineffective, both claims revolving around cell phone records which, he contended, would show that he was making telephone calls and sending text messages the entire evening of the killing, in such quantity that he could not have committed it. 

The court does spend a bit of time addressing the merits of what appears to be the affirmative defense of poor multi-tasking skills, but in the main affirms the dismissal on procedural points.  The prosecutorial misconduct claim - the failure of the State to provide the cell phone records in discovery - is barred by res judicata; since the "records of that process, and the parties' motions and responses therein, would certainly be within the scope of the record on direct appeal," it could have been raised then.  As for the ineffective assistance claim, well, that's not barred, because the failure of defense counsel to obtain the records would require evidence outside the trial record.  But, the court tells us, that requires a determination of whether the defendant was prejudiced, and the court can't decide that here "due to [Onunwor's] failure to furnish the court with the transcripts and exhibits from his trial." 

I don't know what to make of this.  What the State provided, or didn't provide, in discovery is not going to be part of the trial record, unless the parties make it a point to include it, which I've rarely seen done.  And the post-conviction relief petition isn't filed under a new case number; although it's nominally a civil proceeding, it's filed under the old number, and thus the record on appeal should include everything that happened below, including the original trial papers and transcript.  There may be 50 ways to leave your lover, but there are a lot more ways to turn down a post-conviction relief petition, and court seems to have found a couple more.

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