Case Update - Supreme Court Edition
I haven't done a case update in a month. Usually, I'll deal
with US and Ohio Supreme Court decisions, and then some pertinent Ohio
appellate cases. My BFF Lexis, though,
informs me that there are about 300+ of the latter to wade through, an
Herculean task akin to cleaning the Augean stables, which probably is not the
metaphor I want to employ if I'm trying to curry the favor of appellate judges.
So what I'm going to do here is just
deal with the Supreme Court cases; appellate edition tomorrow.
Nothing much from the DC 9; in fact, nothing at all, the closest to a decision which would evoke even the faintest curiosity among the numberless hordes of my regular readers being US v. Bormes, and that only because Bormes was an attorney. He'd filed a complaint for a client, and paid his federal court filing fee with his credit card, then was horrified to find that the receipt included the card's expiration date, in violation of the Fair Credit Reporting Act. He understandably sued, not only for himself but on behalf of the thousands of others who had been similarly victimized and violated. At issue here was whether the federal government had waived its sovereign immunity, which involved consideration of something called the Little Tucker Act. Bormes lost, but I didn't hang around long enough to find out whether there was also a Big Tucker Act and a Just Right Tucker Act.
The Court resumes oral arguments this week, with Missouri v. McNeely being the big criminal case. It involves the question of whether a police officer may obtain a blood sample from a drunk driver without consent or a warrant, based upon the exigent circumstances exception to the warrant requirement, under the theory that otherwise the blood alcohol in the blood will naturally dissipate. Another criminal case worked its way into the pipeline: on Friday the Court granted cert on the question of whether a judge's comments during plea negotiations require the plea to be vacated, regardless of whether the defendant can show prejudice. The case is more likely to be resolved on the Federal Rules, which strictly prohibit a judge's participation in plea bargaining, rather than any major constitutional principle.
The Ohio Supreme Court released a flurry of decisions in December, and I've talked about four of them: State v. Williams, which dealt with allied offenses; the three new cases on what penalties to apply to Megan's Law offenders for violation of their reporting or verification duties; another State v. Williams, this one dealing with the "scheme or plan" exception to 404(B) evidence; and State v. Gardner, a decision on the 4th Amendment where the court surprisingly - at least in light of previous decisions -- concluded that the 4th Amendment is a good thing. Several other decisions merit mention, although much shorter treatment.
State v. Hampton features an "oops" moment by the prosecution: midway through the defendant's trial in Franklin County for a home invasion, the detective testified that he'd just learned that the offense had been committed in Fairfield County. Franklin, Fairfield... well, at least they sound alike. The judge granted a Rule 29(A) judgment of acquittal for lack of venue, and the State sought leave to appeal, claiming that a Rule 29(A) judgment on venue wasn't really a "final verdict," and that venue isn't really a material element of the offense. The court finds that the latter argument is foreclosed by the provision of Ohio's constitution that a defendant is entitled to be tried in "the county in which the offense is alleged to have been committed." Since a defendant is entitled to an acquittal when venue isn't proven, that forecloses the first argument: it's a final verdict, and the State can't appeal.
State v. Roberts adopts a more expansive view of RC 2933.82, which requires the State to preserve certain biological evidence. Roberts was found guilty of aggravated murder in 1997, and shortly after the statute was passed in 2010, he filed a motion to preserve the victim's clothing so that an expert could test it for "touch DNA." The judge denied it, and the 5th District affirmed, finding that the statute wasn't retroactive. Roberts, though, isn't arguing that the statute should be applied retroactively: he's just arguing that the statute, when enacted, applied to any evidence then in the State's possession, and the Supreme Court agrees.
As I'd indicated in my review of the oral argument in Doss v. State, reversal comes as no surprise. Doss had been convicted of rape under the "substantial incapacity" section, but the 8th District reversed, finding the evidence insufficient to establish that Doss knew or should have known of the victim's impaired condition. Doss then sued the State for wrongful imprisonment. The trial judge granted summary judgment, and the 8th affirmed. The Supreme Court reverses, but on about as narrow a ground as possible: "a trial court adjudicating proof of innocence pursuant to R.C. 2743.48(A)(5) may not find that a claimant has been wrongfully imprisoned based solely on an appellate court judgment vacating a felony conviction due to insufficient evidence." (My emphasis.) So the case gets remanded back to the trial court, and Doss gets another shot.
Finally, the court takes another look at its decision in State v. Hood. The case involved the issue of whether cell phone records should have been admitted in the absence of any testimony by the records custodian for the phone company validating them as business records. Of course it shouldn't have been, the court concluded, but when I wrote about the case a month ago, I noted the court used overly broad language in coming to that conclusion. The opinion says that "a hearsay violation itself violates the Confrontation Clause, and thus requires a heightened harmless-error analysis." As I pointed out, this runs contrary to Crawford: only the admission of testimonial statements is constitutional error, triggering the Chapman harmless-beyond-a-reasonable-doubt standard. Admission of statements that are not testimonial does not implicate the Confrontation Clause, and thus are subject to the normal harmless error analysis.
The State was equally observant, and far more distressed by the outcome: a week later, it filed a motion for reconsideration, not objecting to the judgment but to the above statement. So what does the court do? It grants the motion for reconsideration, issues a new decision, and still gets it wrong:
Upon reconsideration, we modify the opinion to clarify that it is not the hearsay nature of the cell-phone records at issue that made their admission constitutional error. Instead, it was their lack of authentication as business records that made their admission unconstitutional under the Confrontation Clause, because without that authentication, the records cannot be considered nontestimonial.
Just because a document is a business record doesn't mean that it isn't testimonial: the basic issue is whether it was prepared by the State, or at its request, for purposes of prosecution. In Hood II, though, the court basically flips this analysis, concluding that if a document isn't qualified as a business record, that means it is testimonial. Certainly not nearly as good as the original decision, which would have resulted in any hearsay error being one of constitutional dimensions, requiring de novo appellate review under the Chapman standard. But it does mean that failure to dot the i's and cross the t's in getting business records admitted is likely to prove fatal to the prosecution's case.