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What's Up in the 8th


Bad news for Old MacDonald, and for James Deal.  The City of Bedford, one of Cleveland's 'burbs, had seen fit to remove "one pygmy goat and four chickens" from Deal's abode, and he contended that the city ordinance banning such animals was unconstitutional.  In Bedford v. Deal, the 8th District delves into the intricacies of constitutional analysis, finding that since "the maintenance of animals is not a fundamental right," the ordinance need only survive rational basis scrutiny.  The court notes that "raising goats and chickens on so called 'urban farms' is increasing in popularity" -- a fact of which I was blissfully ignorant, and can only pray that my neighbors remain similarly unenlightened -- but concludes that the ordinance is "rationally related to a legitimate governmental interest" in protecting the public safety and welfare.  Perhaps Deal, who handled the case pro se -- imagine your surprise -- would have had more luck had he argued for an originalist interpretation:  would the Framers have believed that keeping animals was fundamental right?  I'm not sure how Jefferson, Washington, and some of the other large plantation owners might have come down on that issue.

The flight instruction gets another go-over in State v. Hill, where Hill was convicted of a home invasion robbery solely on the basis of fingerprint evidence.  As I've mentioned before, there are several cases holding that a flight instruction is warranted when the defendant didn't have the good grace to stick around and wait for the police to arrive at the scene of the crime.  The court seemed to have cleared that up a couple years back in State v. Santiago, deciding that "mere departure from the scene of the crime is not to be confused with a deliberate flight from the area in which the suspect is normally to be found."  That's all that Hill appears to have done, but the court nonetheless finds that the instruction was warranted, relying on a 9th District case which concluded that an instruction could be given "where the evidence established that defendant departed the scene, was sought for questioning about the crime, and could not be located," and here the police were "unable to locate" Hill.

Not the least of the problems with the court's analysis is that in the 9th District case, the defendant was finally located -- in Florida.  That's appropriate:  the instruction should be given where the defendant has fled the jurisdiction, or done something else indicative of a consciousness of guilt, like fleeing from the police, or taking active steps to avoid them.  It shouldn't depend on the degree of diligence the police use in finding a suspect.

State v. Rivera teaches me something I didn't know:  the State has to prove venue, but you can't raise its failure to do so for the first time on appeal.  It also tells me something I did know:   when there's a bench trial, the judge's letting inadmissible evidence in will get a pass unless there's something to indicate that the judge relied on it.  A year ago, in In re C.T. (discussed here), the court carved out an exception to the rule that a judge is presumed to disregard inadmissible evidence:  the presumption doesn't apply if the judge overruled the defense objection to the evidence.  Although the Rivera court doesn't mention C.T., it comes to the same result.  The claimed error was that allowing a probation officer's testimony (over objection) violated EvidR 404(B), but the trial judge specifically stated she would not use the testimony as proof of any "bad acts" that Rivera might have committed in the past.

The court reserves the heavy lifting, though, for its 52-page opus in State v. Rogers, an en banc decision on what must be done in the trial court to preserve the issue of allied offenses.  That's not much of a problem where there's a trial; there will be an ample record of the facts, and last year's Supreme Court decision in State v. Williams permits the appellate court to review the question de novo.  Thus, even where the concept of allied offenses is no more than a distant rumor to the judge, prosecutor, and defense attorney -- as it was last year in State v. Trotter, where the defendant received sixty years on six counts of rape and kidnapping which really should have merged into two -- the appellate court can sort through the record and easily decide what should happen.  The problem arises on pleas, as it did in Rogers:   he pled guilty in eight separate cases, and contends that his that two counts of receiving stolen property in one should have merged, and so should have the two counts of RSP and one of possession of criminal tools in another. 

The first issue is easily resolved:  the indictment indicates the property was stolen from two different victims in two separate houses, albeit on the same day.  Separate victims, separate animus, so no merger.  The second is more problematic:  there's nothing in the indictment, the plea transcript, or the sentencing transcript which gives a clue as to whether the offenses are allied or not.

The reason for the en banc resolution is that the 8th has come down with two versions of how to treat this.  For the most part, the decisions have held that the trial court committed plain error in failing to address allied offenses, and remanded the case for that purpose.  But in cases such as State v. Lindsey (discussed here), other panels have held that the failure of the defense to present any facts in the trial court in support of its claim that the offenses might be allied precluded a finding of plain error.  Simply put, an argument that something is plain error presumes that an error occurred, and you can't make that presumption when there's no record showing that the offenses might have been allied.

Whatever the merits of the argument, only one of the twelve judges -- the author of the opinion in Lindsey -- signs on to it.  The others hold that the defense's failure to raise the issue in the trial court doesn't preclude appellate review, and the trial court commits plain error by refusing to inquire where a "facial question" of allied offenses presents itself.  The various opinions (majority, two concurring, one dissenting) give thorough treatment to the issue, but they're not going to be the last word:  the court certifies the decision as being in conflict with one from the 6th District, so the Supremes will have the last word.


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