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What's Up in the 8th

When the legislature passed HB 86 in 2011, they took out the requirement that a judge give reasons in support of imposing consecutive sentences.  They did put in a whole bunch of other requirements for the sentencing hearing, though.  A judge had to tell a defendant that he could accumulate good-time credit by taking programs at the prison.  She even had to tell him how many days he could accumulate.  She also had to tell him that he could work off his court costs by performing community work service, and the hourly rate at which that service would be performed.

All of this is stupid, of course.  Maybe not as stupid as post-release controls, which has seen people sentenced to prison for aggravated murder sent back to court so the judge can tell him that if he ever gets out of prison, he'll not only be on parole for the rest of his life, but may also do three years of post-release control for that weapons under disability charge.

Sorry for the screed.  We now return to our regular programming.

Anyway, HB 86 has since been amended to take out some of those requirements.  A judge no longer has to inform a defendant of the good-time credits.  And last week we learn in State v. Crotts that the judge no longer has to tell a defendant of his opportunity to work off court costs by doing community work service if a prison sentence is imposed.  Good to know.  A judge can still give a defendant thirty years in consecutive sentences by doing no more than reading the findings off a card, but at least we've cleaned up that work credit thing.  Priorities, priorities.

Only five decisions from the Lakefront Courthouse last week, but not a good week for defendants:  the only reversal comes in a consecutive sentence case where the State concedes the judge didn't make the findings.  Well, not exactly; there's a reversal, too, in Chagrin Falls v. Calabrese, but there the defendant winds up on the short end.  A 911 call from an identified citizen informant that a BMV SUV struck the railing outside a bar and took off leads to the police going to the home of the BMV's driver, and when she comes outside the police believe she's intoxicated, administer field sobriety tests, and arrest her.

The judge tosses the search, based on an inconsistency:  in the 911 call, the informant told the dispatcher that the BMV "backed into" the railing, while the damage the police observed at the defendant's home was to the front.  This inconsistency, the judge found, should have caused the police to terminate their investigation without knocking on Calabrese's door.  But the dispatcher had only told the police that the BMW struck the railing, with giving further detail.  "Reasonable suspicion must be evaluated by the facts and circumstances known to the officer at the time of the alleged improper search or seizure," and since the officers know only of the BMV striking the railing, that's good enough.

Further proof that my mojo has gone on vacay is provided by State v. Mims, where the defendant falls prey to the Bad Man Doctrine.  And there's substantial evidence that Mims was a bad man.  He was accused of molesting three children, including his 10-year-old daughter, and most damning were tapes of jailhouse calls in which he pressed his wife to get the daughter to change her story, and told her to tell the daughter he was sorry. 

But this wasn't a sufficiency argument:  at trial, the State introduced extensive evidence of Mims' use of K2, a form of synthetic marijuana, even having a police captain testify as to the effects of the drug on the community.

The problem was that, with the exception of captain's testimony, none of this was objected to, and the opinion's on fairly solid ground in holding that plain error is only to be used to correct a "manifest injustice," and in light of the evidence against Mims, that didn't happen here. 

Unfortunately, the panel doesn't stop there, but also holds the evidence was admissible.  During cross-examination of one of the victims, defense counsel had tried to impeach her as to when the incidents happened.  On redirect, the prosecutor elicited, after several attempts, that it occurred after Mims started smoking K2.  From this, the court concludes that defense counsel "opened the door," and the testimony "therefore is relevant to the circumstances surrounding the abuse in C.B.'s mind and her credibility as to specifically remembering when it arose."  And the testimony of the various other witnesses as to Mims' use of K2 simply served to corroborate the victim's testimony.

There's a difference in opinion as to how harmless error should be determined:  one view focuses on the strength of the remaining evidence, the other on the effect of the error on the jury.  The court seems to take the latter approach, finding that "no reasonable juror" would "conclude that Mims's drug use proved an inclination to commit sexual offenses."  Yet that's exactly what the State was asking the jury to do:  the prosecutor began her closing argument by telling the jury that "all these allegations had occurred" after Mims started using K2, and that the one victim "told you that he would smoke K2 before he would do this to them."  (The latter assertion is flatly untrue; no one testified to any such temporal link.)

Whether a defendant is guilty of a crime and whether he got a fair trial are two separate questions.  The court's opinion is on solid ground in answering the former, but gives short shrift to the latter.


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