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Case Update

No decisions from the US Supreme Court yet, but the gang at SCOTUSblog tells us they anticipate one this week.  There are some oral arguments I've missed, and we'll try to tackle some of them this week.  On Wednesday we'll discuss Chaidez v. US, the case concerning the retroactivity of Padilla v. Kentucky, and on Friday I'll have a post about Bailey v. US, the case concerning whether Michigan v. Summers should be expanded to allow the owner of a property being searched pursuant to a warrant to be detained, even though he's not on the property at the time.

The Court agreed to hear four new cases last week, one of them being Maryland v. King.  As I explained in my post on Friday, the court in King had found that taking a DNA sample from someone simply because he had been arrested for a felony - as Ohio law permits - violates the 4th Amendment.  I'd be surprised if this gets favorable treatment from the Court, but we'll see.  The other big case was one involving the constitutionality of Congress' extension of the 1965 Voting Rights Act, the question being whether the problem of racial discrimination in voting is continuing in the areas affected by the Act.  That, and Fisher v. University of Texas, the affirmative action case recently argued, could provide some of the most significant decisions in the area of race to come down in quite a while.

The Ohio Supreme Court has issued three decisions in criminal cases over the past couple of weeks, and I've talked about two of them:  State v. Emerson, the DNA case, and State v. Billeter , which held that one couldn't be convicted of "escape" - not seeing his parole officer - if the imposition of post-release controls on the underlying offense had been proper.  The third case, State v. Gwen, was a simple one.  Gwen had been convicted of domestic violence with two priors.  RC 2945.75(B)(1) allows the state to prove a prior conviction by introducing the journal entry.  The state had introduced two journal entries, one of which labeled the offense as "minor misdemeanor domestic violence."  That didn't state an offense - there's no such thing as domestic violence being a minor misdemeanor - and so the 9th District held the exhibit was improper.  It nonetheless found that the statute wasn't the exclusive method of proving the prior conviction:  Gwen had admitted to it, and that was sufficient.  The journal entry for the other offense, though, was also problematic:  it didn't comply with State v. Baker, in that while it contained a sentence the space on the forms for whether the defendant had pled guilty or been convicted after trial had been left blank.  The court found that non-compliance with Baker made use of the journal entry improper.  The upshot was that Gwen winds up with a conviction of 4th-degree felony domestic violence instead of the 3rd-degree offense.

In the courts of appeals...

A simple notation in a presentence report that a Kelly Blue Book value of $1660 has been "verified" is not sufficient proof on which to base a restitution award, says the 2nd District in State v. Kennedy... The state can't retain property without complying with the due process requirements set forth in the forfeiture statute, the 1st District holds in State v. North... In State v. Fagan, the indictment alleged that the defendant had violated RC 2911.02(A)(3), the robbery by force statute, but the language alleged a violation of (A)(2), the robbery with physical harm section.  The 3rd District holds that an amendment of the indictment to the lesser offense was permissible...

The 8th District is still the best on 4th Amendment issues, but the 2nd is giving them a run for their money.  In State v. Miller, the court tosses a "knock-and-talk" search, a policy recently adopted by police where they go to a suspect's house, knock on the door, and hope to talk him into consenting to a search.  We'll discuss the case in detail on Wednesday.

Huh?  In State v. Primeau, the defendant was charged with beating his wife to death.  The main issue is a 404(B) evidence question, and the 8th District concludes that evidence by the defendant's former wife as to abuse she'd suffered and testimony by neighbors and deliverymen that they'd seen bruises on the wife were admissible, because they went to identity.  A bit more complicated than that, but the court probably gets it right.  Puzzling, though, was its treatment of testimony by the police officer who arrested Primeau that he found it unusual for someone he arrested to remain quiet.  That's perilously close to an impermissible comment upon the defendant's post-arrest silence, but the Court fluffs this off by saying officer made no mention of guilt, and was merely giving "opinion testimony" regarding his "experience in arresting people."  I mean, really?  I'm not a big fan of harmless error, but I'd prefer that to a holding like this.

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