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Case Update

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You might be one of the houseboat owners non-plussed to learn that the "boat" part of that word does not make it a section 3 vessel under admiralty law; unfortunately, you will have to look elsewhere for a fuller explanation of the Supreme Court's decision last week on that point in Lozman v. Riviera Beach.  A more interesting case for my uncounted legions of readers was the oral argument in Alleyne v. US, presenting the issue of whether the Apprendi rule should be extended to mandatory minimum sentences.  I'll have more on that later in the week, like an explanation of what that sentence even means.  Although some decisions are expected next week, there are no more oral arguments for the Court until the end of February; one of those will be in Maryland v. King, on whether the 4th Amendment allows states to collect and analyze DNA from people merely arrested and charged with crime, as opposed to convicted.

No opinions from Columbus in criminal cases, but that'll change in the future, with seven cases on tap for oral argument this week, six of them criminal.  There's a big case on lesser-included offenses on Tuesday, and Wednesday offers two cases on the right of confrontation.  State v. Ricks presents the scenario all too common to defense attorneys:  the trial court permitted a police officer to recount statements made by a co-defendant which incriminated Ricks, as being for the purpose of "explaining his investigation."  The trial court instructed the jury not to take the statements into consideration in determining Ricks' guilt, which I'm sure made it all better.  There is case law upholding this, dating back to 1987, but that was before Crawford v. Washington made the Confrontation Clause a whole new ballgame. 

Crawford prohibits the use of "testimonial statements" without cross-examination, and one of the lingering questions is to whom must the statement be made to be considered testimonial?  Although the Supreme Court hasn't come right out and said it, it seems that only "agents of law enforcement" qualify.  State v. Clark presents the question of whether teachers fall into that category in a child abuse case, given their status as "mandatory reporters," i.e., they're required by law to report any incidence of child abuse.  The 8th District (discussion about that decision here) held that they were, and also bounced the testimony of two social workers and a detective on that basis, and of two relatives on the grounds that their testimony did not satisfy the requirements for admission of EvidR 807.  Interestingly, the State sought appeal only on the exclusion of the teachers' testimony, so that's the only issue before the court.  I'll have a post on Ricks and Clark later this week, too.

In the courts of appeals...

Colon redux:  In State v. Tolliver, the 6th District holds that recklessness is the mens rea required for conviction of "force" robbery under RC 2911.02(A)(3), and that failure to instruct the jury on that is plain error... The defendant in State v. Jones contends that his plea was invalid because the judge didn't specifically inform him that a violation of post-release controls could lead to the parole board sending him back to prison for up to nine months at a time.  The 2nd District rejects the argument, as has every other appellate district that's considered it... Great search case from the 2nd District in State v. Terrell, tossing a search warrant because it gave insufficient information about the drug activities at the house searched.  The court had noted that "we briefly considered the possibility that the 'good-faith'exception to the exclusionary rule might apply here. We need not decide that issue, however, because the State did not invoke the good-faith exception below and has not argued it on appeal."  The defendant had been sentenced to 29 years... In State v. West, the 8th District concludes that cultivation of marijuana and trafficking through preparation for distribution are allied offenses, and also hold that the court can't order forfeiture of the $1,300 found in West's home (the grow operation was in a warehouse):  "General testimony that cash was found in the home of one convicted of a drug offense without evidence of the presence of drugs or drug paraphernalia, is insufficient to prove any or all of the seized items were used in drug trafficking."

I've often criticized courts for being careless in their wording, and the Supreme Court was guilty of that in Arizona v. Gant.  In that case, the Court struck down the Belton rule, which allowed police to search the interior of a vehicle as incident to an arrest even though the occupants had been removed and weren't within reaching distance of the car.  Gant held that police couldn't search the interior unless the occupants were within "lunging distance," or "it is reasonable to believe the vehicle contains evidence of the offense of arrest."  This should require probable cause to search the vehicle, that being the applicable exception to the warrant requirement.  But as the concurring opinion in the 6th District's decision in State v. Price points out, most courts have viewed it as requiring a lesser "reasonable suspicion" standard.

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