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What's up in the 8th

Our old friend Harmless Error stops by for a visit, and we acquaint ourselves with the Giggle Test, Judicial Nullification, and the Bad Man Doctrine.

Two paramedics, Enzman and Ocasio, respond to a 911 call at the house of Michael Burns, and when they arrive, they see him in the upstairs window, holding a shotgun.  According to Ocasio, Burns said something unintelligible, but Enzman claimed to have heard Burns clearly say, "I'm going to kill you."  The two took off as Burns aimed the gun at them, and heard two shots.

The first two assignments of error in Burns' appeal from his felonious assault convictions concerned the sufficiency and weight of the evidence.  Burns' main argument there is that since the paramedics had their backs turned, there was no proof that Burns was firing the shotgun at them.  That's a shaky claim at best, but in State v. Burns the court goes further, holding that regardless of whether Burns fired the gun at them, his pointing it at them, coupled with the threat, "I'm going to kill you," was sufficient to convict him of felonious assault.  Burns also attacks Enzman's testimony, noting that it was not corroborated by Ocasio, but the panel fluffs that off, finding that lack of corroboration doesn't mean contradiction, and that the jury was in the best position to judge Enzman's credibility on this point.

And then in the final assignment of error, we learn that Det. Schramm, who investigated the case, interviewed Enzman on the night in question, but his report did not include any mention by Enzman of the threat.  The trial judge refused to allow the defense to question Schramm on that omission, but the court finds that any error was harmless.  In essence, after spending several pages talking about why the threat was sufficient to convict on felonious assault, the panel holds that precluding the defense from showing that the threat wasn't made didn't matter.

Jury nullification is a jury's acquittal despite seemingly overwhelming evidence of a crime, but Kurtis Fields finds himself the "victim" of judicial nullification.  The jury acquits him of attempted murder and two counts of felonious assault, but he had elected to try the weapons under disability count to the judge.  She finds him guilty, gives him the maximum three-year sentence, and the court affirms in State v. FieldsIt's a little odd reading the court's opinion about how the evidence clearly showed Fields fired the shots, a conclusion obviously at odds with the one the jury made, but that's the way the law works:  you can't claim inconsistency in a jury's verdict on separate counts, let alone a jury's verdict versus the judge's.  But don't shed any tears for Fields.  The evidence against him was fairly damning, and trying the weapons disability count to the bench kept the jury from learning that he'd spent six years in prison for another felonious assault, something which might well have tipped scales on the other charges.  (That's not mentioned in the opinion; I looked it up on the docket.)  Considering he was looking at a potential twenty-five years on those, this was certainly one of the best decisions he's ever made. 

One summer day in 2012, 65-year-old Jacqueline Gavorski  was taking the groceries out of her car, when 16-year-old Jeffrey Rembert came up behind her and bludgeoned her to death with a large landscaping rock so he could take her purse.  Rembert will be just seven years shy of eligibility for Social Security when - or if - he gets out of prison, something I do not find in the least troubling, and the 8th affirms that outcome in State v. Rembert

Half of the eight assignments of error argue that Rembert's plea was invalid, on the grounds that the judge failed to advise him of something or other.  That "something or other" didn't include any constitutional rights, which means that in order to vacate the plea, Rembert must show prejudice.  For example, one of the claims is that the judge incorrectly told Rembert the maximum fine was $15,000, when it was actually $25,000; as the court notes, this would require Rembert to show that "although he pleaded guilty knowing he could receive life imprisonment without any parole eligibility, had he known the maximum fine was $25,000 instead of $15,000, he would not have pleaded guilty."  To put it mildly, that's a hard sell.  Another argument, that the judge didn't advise Rembert that he wasn't eligible for community control sanctions, doesn't even pass the Giggle Test:  whether you can make it with a straight face. 

Another assignment pertains to an anomaly in sentencing for aggravated murder.  Besides death and life without parole, the other sentences are life with parole eligibility after 20, 25, or 30 years.  But the statute has a distinction:  it's after 20 years of imprisonment, and 25 or 30 full years of imprisonment.  The court finds this distinction significant:  if a defendant is sentenced to the latter, "the prison term cannot be diminished for good behavior or by credit earned."  I'm not so sure there is a distinction:  aggravated murder, whatever the ultimate sentence, is exempted from the provisions for earned credit.  In any event, Rembert's argument that the judge erred in not telling him that he wasn't eligible for any reduction in his sentence goes nowhere.

The only argument with some traction was the judge's advice on parole and post-release control, which was somewhat mangled, but the court gets around that, too.  As you knew they would.  There's a term bandied about by appellate lawyers - the "bad man doctrine" - which refers to the proclivity of appellate courts to affirm a sentence on whatever grounds possible (harmless error is a favorite) if the defendant is truly despicable.  And the judge could've told Rembert that he was eligible for community control sanctions, and there was simply no way an appellate panel would've vacated the plea of a guy who bludgeoned a 65-year-old woman to death.

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