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What's Up in the 8th

It's not unusual for a decision to provide both good news and bad news for a defendant:  one conviction is upheld, another reversed, the convictions are affirmed, but the sentences are vacated, that sort of thing.  Dana Strong, though, gets good news and bad news in two separate cases.  

The bad news comes in State v. Strong.  Back in 2007, Strong was charged with robbery.  Two years later, the case was dismissed because the victim didn't show up for trial.  The very next day, the State indicted him again on the same charges.  It took two years to find Strong, and another year and a half to bring him to trial.  Second verse, same as the first:  the victim failed to show, and the case was dismissed.

This time it took the State a whole 18 days to re-indict.  Eight months later, everybody trooped into the courtroom for the trial.  Everybody except Guess Who.  This time, the court dismissed it with prejudice.

Unwilling to let a dead horse go unbeaten, the State appeals, arguing that the dismissal should have been without prejudice.  A majority of the panel agrees.  A court can dismiss an indictment with prejudice only where "the defendant has been denied a constitutional right or statutory right, the violation of which would, in itself, bar prosecution." 

Well, I'm sorry.  There's a body of case law for the Double Jeopardy Clause which says that at some point the State can't keep retrying a defendant after mistrials.   I gotta figure that if you can't get a due process violation out of somebody being hauled into court every few years, only to have the charges dropped because the victim doesn't show, you're not trying hard enough. 

But Strong draws aces in State v. Strong II, an appeal  from his conviction for felonious assault.  At trial, the prosecutor used a peremptory on one of the two black jurors on panel.  The defense counsel raised a Batson challenge, and the prosecutor gave as a reason for the strike that the juror had "a thousand-yard stare" -- "I have concerns he will be able to pay attention."  The trial judge overruled the objection to the strike.

If you can remember the many, many times I've written about appellate courts reversing on a Batson challenge, that's probably a good reason to get drug-tested.  Successful Batson challenges are as rare as watchable Rob Schneider movies, but in this one the majority, noting that it is "deeply troubled" by the reasons for the strike, decides that the challenge should have been upheld.   Batson cases are very fact-intensive, but there are two takeaways from this one.  First, the majority finds it significant that the prosecutor never questioned the juror on voir dire.  Second, the judge specifically noted that she hadn't observed any conduct by the juror consistent with the State's description, but overruled the challenge "without any further inquiry into the matter." 

Is it my imagination, or did the Supreme Court's decision in State v. Bonnell (discussed here) further muck up consecutive sentencing law, instead of clarifying it?  Before Bonnell, the 8th had a policy of requiring a judge to strictly comply with the findings required by RC 2929.14(C)(4).  Since Bonnell, there have been several decisions which seem to have retreated from that holding.  Add State v. Reed to that list: 

Having thoroughly reviewed the record, we cannot discern that the trial court engaged in the correct analysis, nor can we find evidence in the record to support the court's imposition of consecutive sentences.  [My emphasis]. 

Does that mean if you'd found evidence in the record to support the imposition of consecutive sentences, you would have upheld them, even though the judge didn't make the findings? 

State v. White provides the Bullshit Traffic Stop of the Week™:  he's stopped for a missing front license plate and an improperly illuminated back plate as well.  The officer has the drug dog in his car, which might indicate that he has more on his mind than simply ensuring that everyone is in full compliance with the license plate laws, but White consents to the dog being walked around the car.  Of course, he didn't have to; under the law, a dog sniffing at the outside of a car isn't a search.  And the law also provides that if the dog alerts, which of course it did, that gives probable cause to search the vehicle, which results in the discovery of 43 grams of heroin. 

The opinion walks through all the steps here, and rejects White's contention that the stop was unduly prolonged, because it occurred eight minutes after the initial stop.  Yesterday, we talked about the case SCOTUS just accepted on dog sniffs, where the 8th Circuit had held that a delay of seven or eight minutes wasn't unreasonable.  An important distinction:  in that case, the delay was after the ticket was issued, and here it was after the initial stop.  The courts have generally agreed that it takes an officer 10 to 15 minutes to run a license check, so anything under that is going to pass muster.

Poor William Armstrong.  He gets driving privileges from Chardon Municipal Court on a DUI, with the entry providing that he can drive "7 days per week/ 24 hours per day" so long as his car is equipped with an ignition interlock device.  He gets stopped in Lakewood, and the judge convicts him of driving under suspension, finding that the entry from the Chardon court is invalid because it's essentially unlimited.  In Lakewood v. Armstrong, the panel reverses after checking the judicial organization chart, which doesn't provide for the Lakewood Municipal Court having appellate authority to review the validity of orders of another municipal court.  

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