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What's Up in the 8th

Three weeks of opinions to wade through, and we find a very good search case, a very bad evidence case, and some stuff in between.

Dewanna Buckway falls in between.  HB 86 introduced the concept of "mandatory probation":  except in certain cases, a judge couldn't send a defendant to prison for a fourth or fifth degree felony if they didn't have a prior felony record.  Buckway pleads guilty to obstructing justice, a 5th degree felony, and her only prior conviction is for aggravated trespass, a misdemeanor.  The judge sends her to prison for six months anyway.  The panel in State v. Brockway decides that since her lawyer didn't object at the sentencing - Brockway's brief says the lawyer did, and cites the transcript page - it can only be reviewed for plain error.  That shouldn't really matter; that requires you to show that a manifest injustice occurred, and sending someone to prison who shouldn't be sent to prison seems to clear that bar.  The panel decides to the contrary, and I'd be more upset about this, except Buckway was granted judicial release, so that pretty much moots the whole thing.

On the good side of the ledger, we have State v. Dobson, an appeal I handled.  A guy named "Monster," who sells DVD's house to house - maybe that's where Blockbuster missed the boat - shows up at the door where Dobson is staying with his girlfriend, and Dobson later goes Ray Rice on her because he believes she's carrying on a clandestine affair with Monster.  The two go out to dinner, watch a couple of movies, and retire to bed, whereupon Dobson announces that he wants to have sex.  The woman says she's "not exactly in the mood for that," to which Dobson lovingly responds, "you my bitch."

That's pretty scant support for a rape conviction, but the State's argument was that the use of force could be inferred from the earlier beating; the woman acquiesced because she was afraid of what would happen if she didn't.  The panel decides that this inference can't be made here.  The State's filed a motion for reconsideration, arguing that it's up to the jury to draw inferences, not the appellate court.  It's an argument they've made recently in several 8th District decisions, seeking review by the Supreme Court.  If the panel denies the motion for reconsideration - which is likely - figure this to be another one.

In Middletown v. Flinchum, the Ohio Supreme Court said that the police could make a warrantless entry into a home when in hot pursuit of a fleeing DUI misdemeanant.  Two weeks ago in Berea v. Collins, the 8th District said that the police can't make a warrantless entry into a home to arrest a fleeing DUI misdemeanant.  The distinction?  Here, Finchum pulled into his driveway, then went into the house, before the police could put their lights or sirens on.  The panel accordingly decides that there was no pursuit, hot or otherwise.

Two lessons here.  First, Woody Allen's observation that 90% of life is just showing up applies to appeals:  the city didn't file a brief in the case.  Second, the case serves as one more indication of why the 8th District is a great place for 4th Amendment cases.  In the 5th the panel would've given the cops a medal. 

The good news ends, though, with the decision in State v. Taylor.  The police chased a man and a woman on a motorcycle, and the man eventually ditched the cycle and took off running.  The police couldn't catch him, but the woman, who was pinned under the bike, proved a font of information, telling the police that the driver was Taylor, and even provided his date of birth. 

Come time for trial, though, the woman, called as a witness by the State, gave a different story:  she had gotten on the motorcycle with someone she didn't know to make her boyfriend jealous, couldn't describe the driver was because he was wearing a helmet, and made up the name "Charles Taylor" (and, apparently his exact birth date) because she was "scared."  The State impeached her with the statements she'd given the police, which were recorded by the dash-cam.

But go back a second to that "called as a witness by the State."  A party can't impeach its own witness unless it can show both surprise and affirmative damage.  The damage part is self-evident, but there's one strong indicator that the State was hardly surprised by this turn of events:  it had to obtain a bench warrant for the woman's arrest to secure her appearance as a witness.  The panel decides "this fact alone does not preclude a finding of surprise."  That's not an unreasonable position, although I think the contrary contention - that if you've got to go the trouble of having a witness arrested, you can hardly claim you were surprised when they didn't say what you wanted them to say - is more reasonable.

More troubling, though, is the decision that the admission of the police officer's testimony as to what the woman told them was admissible, as a "present sense impression."  This was wholly improper.  The Staff Notes to the rule indicate that a present sense impression is a "declaration made by an observer at the time the event is being perceived... and is made to another who is capable of verifying the statement at the time."  To be sure, there's case law which holds that the statement can be made "immediately after" the event, but that's strictly construed.  There's no case law which would allow admission of statements made in response to police questioning after an incident under the present sense exception.

Well, there is now.  I can understand the result of the decision; the woman's explanation that she "lied" to the police about Taylor's identity is preposterous, and there's no question he was the culprit.  But in getting to that result, the decision makes some very bad law.

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