Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Case Update

Much of the talk about the Supreme Court's 2013 term continues to center around the Hobby Lobby decision, in which the five of the Court's male justices, all Catholics, decided that corporations have souls which might face eternal damnation if forced to allow their health insurance companies to provide certain contraception coverage to women, at no cost to the company.  On the other hand, my many California readers can take comfort in the fact that the Court might soon redress the Golden State's citizens' inability to get goose liver; in Association des Éleveurs de Canards et d'Oies du Québec v. Harris, the plaintiffs are asking the court to address the state law which bans importation of foie gras because of the manner in which it is produced.

On Thursday, I'll do my annual Supreme Court recap of the past term.  No force-feeding involved.

Down in Columbus, a couple of criminal decisions.  Well, one; in State v. Osie, the court affirmed Osie's death sentence for killing a business acquaintance who'd threatened to go to the cops because Osie's girlfriend had stolen from him.  The affirmance comes despite a finding that a three-judge panel erred in failing to merge duplicative death specifications.  The court cured that error by its "independent review," just like it cured the error of a prosecutor's misconduct in closing argument in the penalty phase a few months ago in State v. Kirkland (discussed here), despite concluding that the argument "prejudicially affected Kirkland's substantial rights."

The non-decision was in State v. Belew.  Belew had been convicted of shooting at two police officers and sentenced to 27 years.  (Belew was shot in the chest by the officers' return fire; the officers weren't hit.)  The focus of the case was Belew's status as a veteran and diagnosis of post-traumatic stress syndrome; the evidence pointed to him having tried to commit "suicide by cop."  Two years ago, the legislature added subsection (F) to RC 2929.12; it requires a court to "consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses."   By a  4-3 vote, the court dismisses the case as having been improvidently granted.  Two justices believe that the case offers an excellent opportunity to clarify the law on this issue, but nonetheless would have affirmed the sentence; O'Neil would have reversed, as he would have in Kirkland and Osie. 

Some falloff from the holiday in the courts of appeals; fewer than 80 decisions.  Let's take a look.

The defendant in State v. Drager pleads guilty to OVI with two prior convictions within six years, but attacks the two prior convictions, bringing in his attorney in those cases to testify that neither of the pleas were made by Drager personally appearing before the judge in open court, as required by the traffic and criminal rules.  "His attorney in those cases" is the operative phrase there:  as the 2nd District notes, the courts have consistently held that the only way you can collaterally attack a prior conviction used for enhancement purposes is by showing that it was uncounseled.

The ubiquitous "marked lane violation" provides the basis for so many of the Bullshit Traffic Stops of the Week™ featured in this blog, but State v. Maxwell doesn't make the cut.  The officer testified that he saw Maxwell  "straddle" the center line for a second or two while changing from the left lane to the right, and then kept his right turn signal on for another 300 yards before turning right.  By a 2-1 vote, the 2nd District reverses the denial of the motion to suppress, noting that what Maxwell did wasn't a traffic violation.  The dissent nonetheless argues that it demonstrated "erratic driving," which, like beauty, is in the eye of the beholding police officer.

The 5th District does a nice job with another search case in State v. Fisher.  Called to the scene of a domestic violence call, the police were told by the victim that the defendant and her brother could be found in the defendant's apartment, and that the brother had a warrant for his arrest in another matter.  The police went to the apartment, saw Fisher and the brother inside, and, when they wouldn't come out, went in and arrested them.  The basis for the entry was the warrant for the brother, and the policy of arresting someone when a domestic violence complaint is signed.

The policy argument goes nowhere; although the emergency aid exception to the warrant requirement might allow the police to enter if they find an ongoing altercation, that's not what happened here; there were no exigent circumstances allowing entry.

The arrest warrant is a little trickier.  The law on this is that the police need a search warrant to enter the home of a third person in to make an arrest of the subject of a search warrant.  There's an exception:  the subject of the warrant can't complain about the warrantless entry, but the homeowner - in this case, Fisher - can.

Search

Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions