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What's Up in the 8th

The State wins a search case last week, and State v. Moore provides our Moment of Eeeeewww:  the judge has to choose whether to believe cops' story that as they patted down Moore, bags of heroin fell out of his pants legs, or Moore's story that they retrieved the bags from his anal cavity.  <Your joke here.>   Since this happened on an Interstate after a traffic stop, I'm figuring that either the cops are telling the truth, of passersby had an unusually bad ride to work in the morning.

The panel also spells out the only way to avoid the imposition of the mandatory fine in a drug case:

If an affidavit of indigency is not filed pursuant to R.C. 2929.18(B)(1), the trial court is required to impose the mandatory fine.  The affidavit must be delivered to the clerk of court for purposes of filing and must be indorsed by the clerk of court, i.e., time-stamped, prior to the filing of the journal entry reflecting the trial court's sentencing decision.

Here, the lawyer handed the affidavit to the judge right after sentencing, but never filed it.  Not good enough.  Moore gets a break, though; while the judge put the amount of the fine in the journal entry, he didn't specify it at the sentencing hearing, so it goes back because of that.  I assume somebody will file the affidavit before that happens.

Several other cases deal with the fine points of sentencing.  In State v. Black, Black and three others are caught after breaking into a house, robbing the residents at gunpoint, then trying to run over some cops with their car while fleeing.  Black cooperated with police and was willing to testify against his accomplices - they wound up pleading out -- but still got a stiffer sentence than any of the others.   But Black's 18 year-sentence is only 13 months more than the other guy who had a gun, and Black was the "point man," so that doesn't go anywhere. 

Black does carve out an exception to the general rule that to preserve appeal on the issue of inconsistency, you have to raise the issue at sentencing:  you don't if the other people you're pointing to are your co-defendants.  Not that it did Black any good, and not that it does any good to raise consistency at sentencing anyway; I can't think of more than a few cases where a court reversed on that basis.  Still, it's an improvement over the case a few years back where the panel held that it wouldn't consider whether the defendant's sentence was inconsistent with that of his co-defendants because he didn't raise it at sentencing.  That would've been a good trick; the co-defendants were sentenced a month after he was.

June passed without the 8th District reversing a single criminal conviction.  To be sure, one more case, State v. Ervin, gets remanded for resentencing because the judge failed to make the necessary findings for imposing consecutive sentences, but given the position that such a remand is not for a de novo resentencing, but is limited to the judge determining whether the findings are appropriate, it simply amounts to an opportunity for the judge to say, "Oh, so this is what I say!"  In Ervin's case, the latest remand completes the circle:  his case was remanded for resentencing back in 2005, but didn't took place until eight years later.  And guess what the first remand was for?

But a remand is as good as it got.  As bad as it got comes in State v. Hostacky, a robbery case.  One cop testifies that she thought victim was drunk until she realized "it really happened to him," and the detective testifies that they stopped talking to the defendant because they "knew [the story he told them] wasn't true."  Vouch for credibility much?

That gets a pass, and so does the final argument of one of the prosecutors, in which he tells the jury that "crime is pervasive throughout the county, drugs are destroying neighborhoods, and crime affects all families."  But that's merely a warmup:  he then recounts that "an officer said [the victim] was sobbing that night [and] * * * after his testimony that day he was out in the hallway sobbing as well. He's a victim"; "as he so honestly told you"; "what you heard there was a truthful statement of a guy"; and "he [the victim] wasn't lying to you."

The court decides that the latter statements don't constitute impermissible vouching for credibility, either, which seems a stretch at best, but more troubling is this:

Moreover, the trial court instructed the jury that "opening statements and closing arguments do not constitute evidence in the case and will not be so considered."  The jury is presumed to follow the instructions of the trial court. Hostacky has not pointed to any evidence in the record that the jury failed to do so in this case.

What evidence might that be?  I don't remember the part in the verdict form where the jury gets to explain that "we find the defendant guilty because we bought into the prosecutor's bullshit."  This isn't as bad as the Supreme Court's decision in State v. Kirkland a couple months back (discussed here), in which the court found the prosecutor's argument was so out of bounds It "prejudicially affected Kirkland's substantial rights," but nonetheless affirmed his conviction and death sentence.  But if you're going to write off even the most outlandish statements a prosecutor makes because the judge tells the jury it's not evidence, you might as well close up shop on the whole concept of misconduct.


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