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Case Update

While an opinion or two might be handed down before the end of the year, SCOTUS closed out its argument calendar last week, with White v. Woodall, being the lone criminal case.  At the penalty phase of Woodall's capital trial, the judge had refused to instruct the jury that they couldn't draw any adverse inferences from Woodall's failure to make a statement.  Something often missed by judges and attorneys is that a defendant's 5th Amendment right against self-incrimination survives a conviction, as the Court held in Mitchell v. USThat case, though, involved a judge drawing an adverse inference from silence in determining at a contested hearing the amount of cocaine Mitchell had distributed.  Here, the issue was remorse:  Woodall was contending that the failure to instruct the jury not to make any adverse inferences could lead them to impose the death penalty because they didn't believe Woodall was remorseful, and that's a mitigating factor.

Or could be; the argument meandered into issues like whether remorse was a mitigating factor or lack of remorse was an aggravating factor.  What's more, this was a habeas case, and although that word was mentioned only twice in the argument, it's likely to show up a lot more in the opinion.  Under the AEDPA, the habeas "reforms" passed by Congress in 1996, a petitioner must persuade a Federal judge not only that state court decision was wrong, but that it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  While Mitchell and several other cases have fiddled around the fringes of the question presented in Woodall, that the Court has never squarely addressed Woodall's situation might be the means of avoiding addressing it here.

The Ohio Supreme Court also closed out oral argument for the year, and the sole criminal case (besides a capital case) was State v. Limoli.  At the time Limoli pled to possession of 9 grams crack cocaine, the offense was a third degree felony with a mandatory prison sentence.  Her sentencing, though, came a few weeks after HB 86 went into effect, and one of the changes it made was the abolition of the distinction between crack and powder cocaine.  Under the new law, Limoli's offense became a 4th degree felony, with no mandatory time.  (In fact, if Limoli had no prior criminal record, she would have been entitled to "mandatory" probation.)  That would seem to be resolved by RC 1.58(B), which provides that if the penalty for an offense is reduced by a new statute, the defendant gets the benefit of the reduction.  The State relies, though, on State v. Kaplowitz, a 2003 decision in which the Supreme Court held that 1.58(B) doesn't apply if the new law alters the nature of the offense, and contends that's what happened here:  under the old law, that the substance was crack cocaine was an element of the offense which the State had to prove, and under the new law, it isn't.  Hard to handicap after watching the argument, but that gets back to Bensing's Rule of Prognosticating Criminal Decisions:  you're not going to go broke betting on the prosecution.

In the courts of appeals, several notable 4th Amendment decisions...

In Georgia v. Randolph, the Supreme Court held that a tenant's consent to search a house is invalid if the co-tenant is present and objects.  The defendant in State v. Cook makes a similar argument, but to no avail.  Cook's girlfriend had given consent to search their apartment, and when the police entered, Cook resisted to the point of almost having to be tasered.  The 1st District finds that Cook made no express objection to the search, and holds that resisting arrest isn't tantamount to refusing consent.  The court also finds that despite a detective noting that Cook seemed "dope sick" during his interrogation, the totality of the circumstances indicated that Cook's being under the influence of drugs didn't void his waiver of his Miranda rights.

If you've got a case involving a supposedly "consensual" street encounter between the defendant and the police, State v. Hawkins is a good place to start.  The 2nd District finds that the initial encounter wasn't consensual, and the lack of reasonable suspicion for the stop meant that the police couldn't do a frisk, even if they had a reasonable suspicion that the defendant was armed.  Most notable was the court's handling of the issue of consent:  it held that since Hawkins didn't feel free to leave, his consent was involuntary.  That's key; there's case law (which the opinion cites) holding that even with an illegal detention, the court must still decide whether consent was voluntary under the "totality of the circumstances."  Hawkins essentially makes the issue of whether the detention was illegal dispositive:  if it was, the consent's invalid.

Finally, State v. Brown revives the distinction in search and seizure law between the Ohio Constitution and the US Constitution.  Brown was stopped for a marked lanes violation by an officer who was outside her jurisdiction.  The jurisdictional problem means the officer didn't have the statutory authority to make the stop, but numerous cases have held that a violation of the statute doesn't require suppression of the evidence found in the stop.  And under various US Supreme Court decisions, there's no jurisdictional problem:  the Court has held that any violation of law, no matter how minimal, provides reasonable cause for a stop under the 4th Amendment.  But the 6th District finds that under the Ohio constitution, "a stop made in violation of state law is reasonable under the Ohio Constitution only when probable cause to make the stop exists and the government's interests in allowing unauthorized officers to make this type of stop outweighs the intrusion upon individual privacy."  The court found that "no extenuating circumstances were presented to justify an extraterritorial stop by township police officers for this type of traffic violation," and suppressed the evidence.

I'll second that.  In State v. Thomas, the State agreed to recommend a three-year prison sentence, but at sentencing the prosecutor indicated only that it had been agreed upon by a previous prosecutor, and that his office would be bound by it.  Thomas argues this reluctant recommendation breached the plea agreement, but the court notes that "the State is not required to be enthusiastic or convincing in giving  its recommendation," and that the agreement "did not commit [the prosecutor] to exude any particular level of zeal" in making the recommendation.


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