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What's Up in the 8th

The 8th District celebrated Valentine's Day in Chicago style, with a massacre on the lakefront:  besides the routine decision holding that the cops yet again screwed the pooch in a search case, the only case that comes close to going into the W column for defendants is State v. Campbell, where the court holds that Campbell was entitled to 363 days of jail time credit, reducing his 24-year sentence by a full 4%.

As we discussed a few weeks ago, an attorney's failure to file a response to the State's discovery demand results in speedy trial time being tolled.  The defendant in State v. Rocha tries to take advantage of this by claiming that his attorney was ineffective for not filing a response, and if he had, speedy trial time would have run.  The court rebuffs this, noting that if the defense lawyer had filed a response, the judge would simply have moved the trial date up to fit within the time.

That's well and good in theory, but in practice the chances of any judge checking the docket to see whether the defendant's discovery response has been filed, recalculating the speedy trial time, and moving up the trial date if it's warranted has about the same chance of happening as there is of Miley Cyrus entering a nunnery.

In State v. Jones, the cops stopped Jones' vehicle because the rear license plate was partially obscured, but they can read it once they get out of the car and look at it closely.  They talk to Jones anyway, ask for his license, and, as all these stories end, find drugs in the car.  There's a 1984 Ohio Supreme Court decision, State v. Chatton, which tossed a search in a similar case:  the cop stopped the defendant for not having license plates, but saw a temporary tag visible through the rear windshield when he got out and approached the car.  The court held that that's when he should've walked away; he no longer had any reason to detain the driver. 

The panel comes to the same conclusion, but the dissent makes a decent argument that Chatton's different:  Jones having his license plate obscured wasn't cured by the officers' ability to read it once they'd stopped the car and looked at the plate from a weird angle.  And on these fine distinctions rests much of 4th Amendment law.

The defendant in State v. Redd learns the fickleness of the appellate courts.  Redd had caused serious injuries to his 9-month old child, and the judge gave him two 30-month consecutive sentences on his pleas to child endangering.  Fourteen months ago, the 8th District reversed because the judge didn't make the necessary findings, and also found that on remand, "based on the record before us, the trial court will be hard pressed to make the required findings to impose consecutive sentences at the new sentencing hearing" because "Redd has no prior adult or juvenile criminal history and was rated the lowest possible risk of recidivism."

Well, that was then, this is now; the judge imposes the same sentence, and the panel affirms, holding that "we are unable to clearly and convincingly find that the record does not support the sentencing court's findings."  (That's the appropriate standard.)  Interestingly, the judge who wrote the opinion in Redd I about how "hard-pressed" the trial court would be to impose consecutive sentences was also on the panel in Redd II, and decided it wasn't that hard at all. 

As always, there were things I learned last week.  When a juror has contact with a third party, the court has to conduct what's known as a Remmer hearing to determine whether the juror or anybody else on the panel was influenced by the contact.  That's explained in State v. Johnson, where Johnson's grandmother went to a juror's house a week after the verdict and told the juror that the two of them had attended grade school together.  The court determines there was no need for a hearing because the contact came after the verdict, and it knows this because the grandmother testified to that effect at the hearing.  Yeah, I'm not quite clear on that one, either.  And in State v. Camacho we find that RC 2901.08 provides that a delinquency adjudication counts the same an adult conviction for purposes of proving a prior offense, except in the case of a repeat violent offender specification. 

Good news for the indolent:  sleep is an affirmative defense to a charge of gross sexual imposition.  At least in theory.  It didn't work in college ("how'd my hand get there?") and it doesn't work for Hinton, mainly because he didn't testify, and there's no other evidence that he was sleeping at the time of the offense.  The judge allowed the defense to reopen its case for evidence of him being asleep, but Hinton declined to testify.  Your homework assignment for this week:  figure out what Hinton's testimony would've been.  "Were you asleep when you stuck your hand inside Tina's underwear?"  "I don't know, I was asleep."

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