Three years ago, in Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits a legislature from making life without parole a mandatory sentence for a juvenile homicide defender. One of the questions left open was what to do with the more than a thousand juvenile homicide defenders who'd already been sentenced to life without parole. The Supreme Court granted cert this term to possibly answer that question, in Toca v. Louisiana. But last week Toca, who'd spent 30 years in prison for a murder he committed when he was 17, made a deal with the state: he'd plead to two counts of aggravated robbery, the murder conviction would be vacated, and he'd go free. That almost certainly moots the case.
SCOTUS didn't come down with any decisions last week, but the Ohio Supreme Court did, with four criminal cases, one of which we talked about on Thursday. Two others, State v. Radcliff and State v. Vanzandt deal with sealing of convictions, and we'll talk about them on Wednesday.
Probably the most significant decision was State v. Beverly. Or at least, it would have been had the court not decided State v. Griffin three months ago. As I explained when I discussed Griffin, that case and Beverly involved a question under Ohio's Corrupt Practices Act. The statute requires three elements: that the defendant, while associated with an enterprise, participated in the affairs of the enterprise through a pattern of corrupt activity, the "pattern" consisting of two or more crimes. The more particular question in Griffin was whether the enterprise had to have a separate existence from the pattern of corrupt activity. That's a muddled question, but the court in Griffin resolved that by ignoring it: it held that a judge in her instructions to the jury need do no more than read the statute.
Beverly is nothing more than error correction. Beverly and his cohort Imbler went on a crime spree over a three-month period in late 2010, stealing cars and burglarizing homes. The 2nd District found this wasn't sufficient to show that there was an enterprise separate from the pattern, but given Griffin, that's going nowhere. That's a defensible result in this case, but it leaves open the possibility that anytime two people commit two crimes over any appreciable period of time, they're going to get hit with an OCPA charge, and it's questionable whether that was the intent of the legislature in enacting the statute.
In the courts of appeals...
We all know that an indictment can be amended to change the date, so long as the defendant isn't prejudiced. For example, if the indictment says you robbed a 7-11 on January 6, 2014, and the evidence shows the store was actually robbed on January 8, 2014, the discrepancy isn't going to get you off. On the other hand, if the indictment charges child rape between March 1, 2008, and January 1, 2010, but the State wants to change that to March 1, 2006, they're not going to be allowed to do that: you didn't have an opportunity to prepare a defense to events that occurred two years prior. In State v. Wilkins, the 2nd District points out another situation where the indictment can't be amended to change the date: if the new date would be after the date the indictment was returned. The State charged Wilkins with theft occurring on May 7, 2011, but on the day of trial moved to change the date of offense to "May 7, 2011, to the present." No can do, at least in the 2nd: the amendment is invalid because "the crime alleged in the amended indictment was, at least in part, neither presented to nor considered and returned by the grand jury."
A court doesn't have unfettered discretion in imposing conditions for community control sanctions, as the 1st District notes in State v. Cauthen. The judge had required Cauthen to obtain full-time employment as a condition for CCS, but the 1st reverses, noting that Cauthen had been unable to work full-time in the past because of mental health issues, and would lose her disability payments if she took a full-time job.
State v. Stevens demonstrates the difficulties of demonstrating jury misconduct, even if you get around the aliunde rule. Stevens had been convicted of murder, but sought a new trial when he discovered that one juror's sister had been raped and murdered four years before. The 5th District had earlier reversed the judge's denial of a motion for new trial on this basis. Does this mean that Stevens gets a new trial? No, it means that the case goes back for a hearing to determine whether Stevens could have gotten the juror removed for cause. As anybody who's ever done a voir dire can tell you, that basically requires getting the juror to admit he couldn't be impartial. Guess how that turned out?
There's been a trend of recent cases holding that aggravated robbery and murder don't merge if the force used for the murder is "far in excess" of what is necessary to commit the aggravated robbery. There's some merit to the theory -- that might demonstrate a separate animus -- but there's also a problem: when wouldn't a killing be in excess of what is necessary for robbery? That's demonstrated by the 10th District's decision in State v. Albert, where the court holds that aggravated arson and murder don't merge because the "excessive force" Albert used indicated a separate animus to kill. The facts are that Albert and a co-defendant poured gasoline on the victim and set him on fire. How you get a "separate animus" for arson and murder out of that I have no idea.