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What's Up in the 8th

My perusal of the 8th District's dozen decisions in criminal cases last week doesn't get off to a promising start.  There's the fourth appeal from a 28-year sentence rape and felonious assault with an RVO spec, a pro se appeal from an order denying a motion to set up a payment plan for courts costs, and a pro se appeal in a 1987 murder case from a denial for DNA testing on boots that don't exist.  But things pick up, and we have what is probably the best decision I've seen from the 8th in months, and what is the only real win for defendants.  (Given my bias, I don't dismiss the thought that the two are coincidental.)  We'll talk about that one tomorrow.

Last week I suggested that the State might want to have second thoughts about conceding that a trial court didn't make the necessary findings to support consecutive sentences, given the 8th's retreat from State v. Nia, its en banc decision just months ago requiring strict compliance with those findings.  That concession is compelled, though, in State v. Love, where the panel concludes that the judge failed to make any of the required findings "even under the more relaxed standard of review set forth" in the Supreme Court's decision in State v. Bonnell.  As I'd indicated before, in the immediate aftermath of Bonnell, there was some willingness to stick with Nia, but the court's been in full retreat in the past few weeks, and Love is one more indication of that.

One of the points I've made here is the importance of a defense lawyer building and protecting the record, but that's important for a judge, too, as State v. Ellis demonstrates.  Ellis and a juvenile accomplice committed a truly horrific home invasion, beating and robbing an elderly couple at gunpoint, then throwing her into the trunk of their car and driving her around town in an attempt to get money from her debit card.  When they believed she was giving them the wrong PIN, they beat her some more and abandoned the car, leaving her in the trunk.  Ellis gets a well-deserved 25 years for this (his accomplice got 20), and the appeal focuses on whether the kidnapping, aggravated robbery, aggravated burglary, and felonious assault convictions should have merged.  The trial judge conducted what the panel calls "a model sentencing hearing," at which the State gave an extensive factual recitation, and concluded that the offenses were committed separately; the panel has no trouble affirming.

As Ellis might indicate, it was a fairly bloody week in the 8th; five of the twelve cases involved appeals of murder convictions.  One of them was State v. Cannon, where Cannon argues self-defense at trial, only to have the State counter that he never made that claim to the police officers who arrested him.  Cannon claims this violates the rule in Doyle v. Ohio which prohibits using post-arrest silence, but it turns out that while Cannon had the right to remain silent, he didn't have the ability:  he told the police that he was nowhere near scene of the crime.  Doyle precludes the use of post-arrest silence, not post-arrest chatter. 

Similarly unsuccessful in his appeal from the denial of a motion for new trial from his murder conviction is the defendant in State v. Smith, who presents an unsympathetic court with a recantation by one of his accomplices.  The motion was filed 13 days past the 120-day limit for a new trial on the basis of newly-discovered evidence, and the court holds that Smith's failure to first file a motion for leave to file the motion for new trial is sufficient reason in and of itself to deny the motion, at least in the 8th.  That's a bit harsh, and some other courts have been more forgiving, treating an untimely motion as one for leave as well.  That seems the better approach, and it forecloses the possibility of the judge denying the motion to leave, only to have that ruling successfully appealed and the case sent back for determination on the merits, with the possibility of yet another appeal.  To its credit, the panel considers the merits, and decides that the trial court was right to deny the motion without a hearing.  Recantation "is looked upon with the utmost suspicion and must be viewed with strict scrutiny," and testimony of other witnesses, including the two other accomplices who testified against Smith at trial, indicates recantation would not have changed result. 

State v. Lawrence represents another aggravated murder trial where the defendant is convicted of only felonious assault, a mystery given the court's recitation of the facts.  (Lawrence winds up with a 24-year sentence, so it's not like he gets to chalk one up in the win column.)  The big issue arises on the third day of trial, when the police inform the judge that members of Heartless Felons gang would be attending the trial to intimidate witnesses.   Without a hearing, the judge issued an order requiring anyone entering the courtroom to state their name, present a valid form of picture ID, and have their picture taken.

The court upholds the procedure, and there was certainly some basis for the trial judge's concerns; by the time of the order, one spectator had been caught trying to take pictures of jurors on his cell phone, and several witnesses had refused to testify.  Still, I'd feel a little better about the decision if there had been a hearing, and I'd feel a whole lot better if the panel hadn't brushed the whole thing off by saying that no one "was ever barred from entering the courtroom," but were "simply required" to do certain things.  Having your picture taken by the police as a condition of entering a courtroom seems to implicate the right to a public trial a lot more than the court gives it credit for doing.


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