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What's Up in the 8th

Last year, the 8th District handed down 1246 decisions, or about 104 a month. They're well off that pace this year; with a little over a month to go, they've issued 323 fewer, and last year they only ruled on 117 cases after Thanksgiving. Last week they issued only nine, less than half their normal output.

But that was probably because they collapsed in fatigue after they produced the 42-page magnum opus in State v. Driggins

It's hard to figure out what's the weirdest thing about the appeal in Driggins. There's the fact that there were 22 - count'em, 22 - assignments of error. Or that Driggins' attorney didn't ask for an extension of time to prepare the brief, even though the 8th grants one (but only one) extension of thirty days as a matter of course; the brief was filed a mere 13 days after the transcript and record, a full week before it was due. Or that no motion was filed to exceed the 8th District's 35-page limit for briefs, which left a little over a page of argument per assignment, and that's not even factoring in the statement of facts and other formalities.

And there were some formalities to cover, because the procedural aspect of Driggins' case, while not labyrinthine, was unusual. He'd been involved in a killing during a botched home invasion, and initially pled out to murder and aggravated robbery with a firearm specification. He got 18 to life for that, but part of the deal was that he'd testify against the co-defendant, and when he balked at doing that, the plea deal was vacated. He went to trial, and was convicted of murder, aggravated robbery, and aggravated burglary, and given maximum consecutive sentences totaling 38 years to life.

That wound up forming the basis of the 21st assignment of error, which argued that the judge failed to personally advise Driggins at the original plea hearing that the deal could be pulled if he reneged on it. The court shrugs that off, and the same fate befalls five separate assignments of error relating to the multiple confessions Driggins made. An interesting twist here is that Driggins called a family friend, whom he regarded as a "father figure," and who came down to the station and talked to him, after which Driggins made his final confession. Driggins argues that this was unlawful coercion, but the court finds no evidence of coercion, lawful or otherwise; the multiple Miranda waivers Driggins signed pretty much seals the deal.

Driggins does get a little bit of mileage with a 404(B) argument. He was initially accosted by the police because he was a "person of interest." He wasn't interested in them, though, and skedaddled, tossing way a bag of crack cocaine in the process. That came out at trial, with the judge finding that it formed the immediate background of the crime. The panel decides it shouldn't have been admitted because Driggins had offered to stipulate to his arrest, but finds it harmless in light of the "overwhelming evidence supporting defendant's convictions." That tells you how the assignments regarding sufficiency and manifest of the evidence fared, the court pointedly mentioning that "Defendant fails to point to any particular element within his convicted offenses or any specific evidence or testimony in the record to support his argument." As if.

In his statement, Driggins claimed that the victim tried to grab the gun Driggins was holding, and that he "pulled the trigger to get him to let go of my hand." That provides the basis for one of the few arguments which have any legs, the failure of the judge to charge the jury on involuntary manslaughter. (That's actually one of the seven assignments of error relating to jury instructions.) The court concludes that Driggins "purposefully fired the gun," and cites several cases holding that "a jury can infer intent to kill by the defendant's use of a firearm, an inherently dangerous instrumentality, the use of which is likely to produce death." That's well and good, but the two cited cases deal with sufficiency of the evidence, not whether a lesser included charge is warranted. While Driggins may have had the intent to fire the gun, it's at least arguable that he didn't have the intent to kill, and a jury instruction on the lesser offense was warranted.

This becomes critical in the court's consideration of the assignment of error relating to merger of the offenses. Driggins was acquitted of aggravated murder, but convicted of the lesser offense of murder, under both the (A) and (B) provisions of the statute, which provide, respectively, for conviction for a purposeful killing, and conviction for "felony murder," that is, when death results from the commission of another first or second degree felony. The two predicate offenses for the felony murder were the aggravated robbery and the aggravated burglary. The State was supposed to elect whether to have Driggins sentenced on either the (A) or (B) section of the murder statute, but didn't. The court finds any error in this failure harmless, because "the crimes at issue are not allied offenses." The basis for this is the Supreme Court's decision in State v. Johnson. No, not the one in 2010, which established a new test for allied offenses; the one in 2000 which held that aggravated murder, aggravated robbery, and aggravated burglary weren't allied offenses because they were committed separately and with a separate animus. The opinion then cites two cases from the 8th holding that "felony murder is not an allied offense of similar import to the underlying felony," and calls it a day.

But problems abound with this analysis, mainly, that all predate the 2010 Johnson case. The Johnson test, which focuses on the defendant's conduct, has given courts fits, particularly in the context of a burglary offense and the crime committed subsequent to entry; there are some cases holding that the entire course of conduct -- the breaking into the residence, the robbery of the resident, and some assaultive or homicidal conduct toward him -- is "one act," and that all the offenses merge, while there are others holding that the breaking is a separate act, and does not merge with the subsequent conduct. The robbery situation is more clear-cut; especially where the assault or killing occurs at the same time as the assault/homicide, the courts have been quite willing to consider them allied.

And that's just in the context of the (A) murder section. For the (B) section, felony murder, courts have been quite willing to recognize that the underlying crime merges with the killing. After all, that's what felony murder is: the only reason the defendant is charged with murder is that a death was proximately caused by some underlying act. If the death results from the underlying crime, they're committed by the same "act or conduct" under Johnson, and should merge. Indeed, that was the factual pattern in Johnson: the defendant beat his son to death, and the court held that the child endangering charges merged with the felony murder, because the former were the basis for the latter charge.

Is that significant? Yeah, because Driggins is doing an extra ten years on that. Sure, that comes off the back end, and it's doubtful Driggins would've considered it a win if his lawyer told him the result of his appeal is that he'd only do 28 to life instead of 38 to life. But ten years is ten years.

This is basically another example of the two opposing appellate strategies: throw everything in there, and winnow things down to present only your best arguments. I don't think there's a certain answer to that question; it probably depends on the appellate district you're in, and what constitutes "everything." And this certainly isn't a criticism of the lawyer involved; if you check the Supreme Court's website, you'll find that he's handled more cases there than I'll ever hope to. But it's something to think about the next time you sit down to write a brief.


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