Coming Attractions
Doug Wine wanted to roll the dice. When the judge presented the proposed jury charge
in Wine's rape case, it included an instruction on the lesser offense of gross
sexual imposition. Wine's attorney
objected, but the judge gave the instruction.
Sure enough, the jury acquitted Wine of rape, but convicted him of the
lesser offense. So last week, in State
v. Wine (link is to video of oral argument, and that has links to
briefs in the case, etc.), the Supreme
Court heard oral arguments on Wine's proposition: that due process gives the defendant a veto
right over whether an instruction on a lesser offense is given to the jury.
The argument had some logical incoherence, because Wine's
lawyer conceded early on that if the State had asked for the instruction, the
judge would have been bound to give it. Here,
the judge had proposed the instruction sua
sponte. In fact, that appears to be
the reason the court agreed to hear the case, and the lawyer's decision to
concede that point was dictated by the fact that there are any number of
decisions that say that the prosecutor has the right to seek one. But it's tough to argue that your due process
rights are violated if the judge gives the instruction on his own, but they're
not violated if he gives it because the State asked for it. From the looks of it, Wine's going to be
hard-pressed to find any votes for his argument, let alone four.
Two other cases, State
v. Tate and State
v. McGlothan, show that Cleveland men are no slouches at beating up
women. Tate was charged with domestic
violence, and the parties stipulated to his two prior convictions of the same
offense -- with the same victim -- elevating the crime to a third degree
felony. RC 2945.75(B) specifies the manner
in which a prior conviction can be proven:
a certified copy of the journal entry conviction, coupled with evidence
that the defendant was the person referred to in the journal entry. On appeal from Tate's inevitable conviction, the
8th District determined that the stipulation went only to the authenticity and
genuineness of the document, and wasn't a stipulation as to identity, an issue
neither party had raised.
I think the court's going to come down with a decision for Tate, albeit reluctantly. There was a concern about gamesmanship here;
the judge, not the parties, had specified that the stipulation was to
genuineness. But if you're going to try
cases like this, and especially if you have the burden of proof, you've got to
learn what the difference is between stipulating that something is a journal
entry and stipulating to the fact of a prior conviction. (A note here:
normally, a journal entry is self-authenticating, and thus wouldn't
require a stipulation as to genuineness and authenticity. Here, though, the "journal entry" was
actually a faxed copy from Franklin County, so the defense's stipulation to it
was significant.)
When I discussed the 8th District's decision on McGlothan when it came down, I summed up
the facts succinctly:
McGlothan had pulled out the victim's tracheotomy tube when he grabbed her
shirt in the midst of an explanation of why he was "tired of this
shit," a scene that will probably not find its way into the next Lifetime
Movie Network episode about abused partners.
His case involved the issue of just what constitutes "cohabiting"
under the domestic violence statute.
Back in 1997, the Supreme Court had held that the elements of
cohabitation were (1) a sharing of familial or financial responsibilities and (2)
consortium. The 8th had reversed
McGlothan's conviction, finding no evidence to show that the two shared any
financial responsibilities.
In fact, it's not clear what the two shared: that the two were "boyfriend and girlfriend"
was the only information the prosecutor elicited regarding the sexual aspect of
the relationship, and both were getting their own disability payments; the oral
argument degenerated at points to a discussion of whether something like taking
out the garbage was evidence of "shared familial responsibilities."
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