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What's Up in the 8th

Who's that adorable moppet in the video below?

Why, it's Ryan Gosling, fresh from his audition for the Mickey Mouse Club Musketeers.  (He doesn't look quite so adorable in this picture from his star turn in The Driver.)  


So, why are you reading this here?  Because it was probably that long ago that the State won three search cases in the 8th in the same week.

Nothing particularly notable in the decisions.  From State v. Harris, we learn that defacing a prescription bottle is a first degree misdemeanor, and thus an arrestable offense, providing one of the key events in Harris' journey to jail, where the police find two bags of heroin in his underwear.  (Lending credence to our mothers' warning, "Do you know where that came from?")  State v. Saleem teaches that the driver can give valid consent to search a car, even if the owner is present, at least as long as the owner doesn't object.  In State v. Green, the police have an arrest warrant for Green, and claim that when they went to his house, they smelled a strong odor of raw marijuana; on this basis, they got a warrant, searched the house, and found a marijuana grow operation.  Green's version is that the police came, did a protective sweep of the house, and used that to get the warrant.  Quite possibly, but that's an argument you're going to win in the trial court or not at all.

The Ohio State Bar Association gives a seminar each September in Criminal Advocacy, and my friend John Martin, head of the county PD's appellate division, and I have done the exact same gig there for the past four years:  I do an hour on evidence, and he does an hour on preserving issues at trial for appeal.  Two cases, State v. Davenport and State v. Wells, will provide him additional fodder for discussion.  One of the key pieces of evidence in Davenport is a CD containing various jailhouse telephone calls between Davenport and another person, allegedly regarding the hiding of a gun used in the offense.  There were actually four recordings, but they're all on the same CD; parts of some were admissible and others not.  The panel has not a clue as to which was which.  As is often the case when recordings are played in court, the court reporter doesn't transcribe it; the record simply notes, "recording played for the jury."  Trial attorneys often are unaware of how what happens in the courtroom comes across in a transcript; I'm doing an appeal now involving two skilled trial attorneys, where the transcript is filled with questions like, "And how far was he from you at this point?  About where I'm standing?"  Well, that certainly limits it to someplace in the courtroom...

In Wells, the police obtained identifications of Wells from several witnesses, and Wells filed a motion to suppress, arguing that the identification procedures were suggestive and didn't comply with the new statute on using photographic arrays, RC 2933.83.  At the hearing on the motion, the judge prohibited Wells' attorney from cross-examining the witnesses as to the reliability of their identification.  Not a problem, says the panel; the purpose of the hearing is to determine whether the identification procedure was unduly suggestive, and when Wells didn't show that, the question of the reliability of the identifications went to the weight, not the admissibility, of the testimony.  But the statute also provides that the jury should be instructed to consider noncompliance with the statute in determining the reliability of the identifications, and Wells argues that the judge erred in not giving that instruction.  The court shrugs that off, too, first because no objection was made to the lack of an instruction.  (And objecting is the most fundamental way to preserve the record.)  More significantly, while evidence of noncompliance was adduced at the hearing, it wasn't presented at the trial, and therefore the jury would have had no basis for determining what weight to give noncompliance. 

That's probably an appropriate result, but the 47-page magnum opus in Wells is disturbing for another reason.  When Wells was arrested in 2010 for a murder he allegedly committed in 2006, he was on probation for another offense.   It took 734 days to bring him to trial on the murder, and the court painstakingly delves through the record to find that only 226 of the 270 days for speedy trial had elapsed.  But that's assuming that he wasn't in jail solely on the pending charge; if he was, then he was entitled to the three-for-one provisions of the speedy trial statute, meaning he had to be brought to trial within 90 days.  And a couple of days before his arrest, he picked up a probation violation on another case, so he was in jail on that during the two years it took to try him.

Two problems here.  While committing another offense is ordinarily a probation violation, it's not if you committed the other offense before you were placed on probation.  Here, the murder occurred four years before the offense for which he was being held on the probation violation.  If the probation holder isn't valid, then you can't use that to take Wells out of the three-for-one count.  The court gets around this; it allowed the State to supplement the record with the journal entries and other material from the probation case, and found that the holder was also because Wells had dropped a dirty urine.

The second problem is that the probation offense was only a 5th degree felony, with a maximum one-year jail term.  That term would've expired a year before Wells' trial.  Wells should've at least been entitled to the triple count provision from that point on, but the panel says no, because Wells didn't appeal that case, and therefore whether the holding of Wells beyond the one year "violated Wells' due process rights in the probation case. . . is not before this court."

I'm sorry, but that doesn't make sense.  Wells wasn't arguing that continuing to hold him for the probation violation after a year violated his rights.  (In fact, any appeal from that case would've been moot; the judge terminated his probation when he sentenced him on the murder conviction.)  He was arguing that the probation violation would have expired when he'd served a year in jail on that, and the appellate court had everything it needed to make that determination; this wasn't a situation where the lawyer had failed to put something in the record.  There was ample evidence in the supplemented record to show that he couldn't be held beyond one year on the probation violation, and once that happened, he should have reverted back to the triple count for speedy trial purposes.  There's lots of solid evidence against Mays, and it's hard to cut a murderer loose for a speedy trial violation, but you get the feeling that played too large a role in the court's determination of whether that violation occurred.


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