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What's Up in the 8th

We're talking about money:  three of the 8th's cases last week dealt with that, two of them in the child support context and one concerning mandatory fines.  That wasn't the highlight, though.  The yin was provided by a reversal of an attempted murder conviction on the basis of erroneous admission of 404(B) evidence, and the yang by a case allowing victims to testify by way of Skype.

Aaron Fuller owes nearly $30,000 in back child support.  By comparison, John Latimore is a piker:  his tab runs just a touch over eight grand.  They have a common issue and common argument, though:  the trial court in their child-support criminal cases ordered them to pay the full amount of the arrearage, and both argue that the arrearage should be limited to the amount incurred during the time frame set forth in the indictment. 

That would've been a winning argument a year ago, when the 8th said precisely that in State v. WileyBut that's so fifteen minutes ago.  In State v. Latimore, the panel adopts the view of other courts and holds that while the court can't go beyond the indictment in ordering restitution of the arrearage, it can order the entire amount paid as a condition of community control sanctions.  You say to-mah-to, I say to-may-to.  The court repeats that in State v. Fuller, also telling him that if he wants to get relief from the $550-a-month payments on the arrearage, he has to go back to the juvenile court which ordered that amount; the trial judge in his criminal case doesn't have to hold a hearing to determine his ability to pay.

Much of the language in Latimer and Fuller is the same, which is interesting because both decisions were released the same day by two totally different panels.  I'm not sure there's anything wrong with the obvious collusion, and it certainly prevents a repeat of an incident a few years ago when two panels of the court released their decisions the same day coming to polar opposite conclusions in the same custody case.

Ability to pay and the Wayback Machine are also on display in State v. Clemons.  In addition to a six-year prison sentence for selling drugs, Clemons has to pony up the $7,500 for the mandatory fine.  But wait:  didn't he file an affidavit of indigency?  Yes, but that's not dispositive; the court can still order it if it finds that the defendant has the ability to pay in the future.  That's not what the court said just a year ago in State v. Davis.  In fact, it said the opposite:  "the mere possibility that an offender may be able to pay the fine in the future is not a proper basis on which to find that a defendant is not indigent."  The Clemons panel decides that Davis is "unique to the facts of that case," which is appellate-speak for Davis now has about as much-relevance to this issue as the Dead Sea Scrolls.  Despite his six-year sentence, Clemons "will have many years of employability remaining upon his release from prison," and you can bet employers will be lined up at the gate to hire him when he walks out, too.  The big killer was the fact that Clemons posted a $25,000 bond and hired a lawyer.  That'll teach him to exercise his constitutional rights.

The March of Technology continues in State v. Gay.  Gay is convicted of nine counts of credit card fraud, due in large part to the testimony of three witnesses who testified via Skype.  Gay argues that this runs afoul of the confrontation clause, but the court relies on Maryland v. Craig and its own decision six years ago in State v. Marcinek that there can be exceptions to in-court confrontation:

To qualify as an exception, the procedure must (1) be justified, on a case-specific finding, based on important state interests, public policies, or necessities of the case and (2) must satisfy the other three elements of confrontation -- oath, cross-examination, and observation of the witness's demeanor.

That's not a high bar.  Craig involved a Maryland statute which permitted a child sex abuse victim to testify by video if the State could demonstrate seeing the defendant would result in the child's suffering serious emotional distress to the point where the child couldn't communicate.  In Marcinek, the court upheld videoconferencing the testimony of a social worker who now resided in Belgium.  Here, the "important state interests, public policies, or necessities of the case" seem to be nothing more than that the victims live out of state.

Ronald Miller's wife was out running errands in her 1994 Honda Civic when the car suddenly accelerated.  Despite smashing the car into a brick pillar, she was unhurt, but when the police investigated further they found a wood shim shoved into the throttle.  Miller's DNA was found on the shim.

Miller's story of how the shim got there was kind of sketchy, and the jury convicted him of attempted aggravated murder.  But in State v. Miller, the conviction is reversed because of the admission of testimony by Miller's ex-wife that when she approached Miller about getting divorced thirty years ago, he told her he'd do something to the brakes on her car.

That's 404(B) evidence, of course, and the required analysis for that was established by the Supreme Court two years ago in State v. Williams (discussed here).  The Miller panel decides that the testimony meets the first two requirements of Williams:  it's probative, and it possibly falls within one of the 404(B) exceptions, motive.  I say "possibly" because the court doesn't spend a lot of time with that, deciding that the testimony flunks the third requirement:  that the probative value must outweigh the prejudicial effect.

The court gives a number of reasons for that conclusion -- the remoteness of the earlier incident, the distinction between a threat (there) and conduct (here) -- but it emphasizes that the ex-wife never reported the threat, couldn't even remember what the actual threat was, and that "there was no independent corroboration" of the ex-wife's claim.  The court assures us that it's not suggesting that "such statements must be proven by independent fact," but one comes away from the opinion with the belief that the panel simply concluded that where a guy's on trial for tampering with his wife's brakes, having an ex-wife come in and make a wholly-uncorroborated claim that he threatened to do something to her brakes 30 years ago just isn't fair.  And it wasn't.

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