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What's Up in the 8th

St. Patrick's Day in Cleveland is a holiday just a rung below Christmas, and on a court which features no fewer than three Gallaghers, we can anticipate that the 8th District will be represented in the parade.  As the judges march through the brisk mid-30's temperature, they can take comfort from the fact that I have not an unkind word about any of their decisions over the past couple weeks.  That, and green beer:  what more could you want?

The co-defendant gets the same result in State v. Martin.  In both cases, the State argued that the statute is tolled when the defendant "purposely avoids prosecution," and the State has a better claim here than it did in Porter.  Porter merely moved back to Akron, a month after the police closed their investigation, while Martin moved to Illinois, and a defendant's leaving the state creates a presumption that he did so to avoid prosecution.   The court finds that presumption is overcome:  like Porter, Martin didn't move to Illinois until after the investigation was closed -- rather easy to do, since the police closed their investigation a mere two days after the incident, without interviewing either Martin or Porter, or any of the witnesses -- and there was no attempt to contact him there, even though the government knew how to do so.  Plus, the State had no difficulty locating him after the indictment was returned.  Here's the money quote:

The statute of limitations is intended to discourage inefficient or dilatory law enforcement rather than to give offenders the chance to avoid criminal responsibility for their conduct.  In this case, it was dilatory law enforcement that caused the statute of limitations to expire, not Martin's lawful return to his home state.

There are two things we know about eyewitness identification:  (1) it's very unreliable, and (2) juries find it very persuasive.  One of the ways to counter (2) is by bringing in an expert to testify about (1):  to explain to them how things like weapon focus and cross-racial identification can produce a false ID.  How far the expert can go in doing that is explained in State v. Patterson, and the answer is, pretty far.  There is a very bright line, however, which can't be crossed:  the expert can't testify as to whether the particular witness's identification was trustworthy and reliable.  It's the jury's job to figure that out.

What happens if your client is convicted of another crime while he's on post-release controls?  That's governed by RC 2929.141, which allows the judge to terminate PRC, if he's so inclined.  He can also impose a prison sentence of the greater of one year or whatever period of PRC is left, and run that consecutive to the sentence for the new crime.

If you're handling a case where that happens, be sure to check the journal entry of the case where post-release controls were imposed.  I had one last year, and found that the judge in the earlier case hadn't notified the defendant that if he violated PRC, the parole board could send him back to prison for one-half of his original sentence.  Since the failure to make that notification renders the imposition of PRC void, then the defendant was never validly on PRC, and the judge couldn't impose the additional time, in that case, nearly four years.  The defendant in State v. Bybee tries to expand on that, claiming that the judge's failure to notify him about RC 2929.141 renders imposition of PRC void, but that's not going anywhere; there's nothing in the statutes that require a judge to notify a defendant about anything other than what the parole board can do.

State v. Carter demonstrates that, despite open discovery, you never know what's going to happen in a trial.  Carter complains that his aggravated murder conviction resulted from a deprivation of his due process rights, specifically, that the State presented text messages, jailhouse phone calls, and a Facebook page that weren't turned in discovery.  But most of that turned up in the day or so before trial, and besides, most of it was duplicative of other evidence, so any error is harmless.  For example, the detective learned just the day before trial that you could look up phone numbers on Facebook.  Good to know that I can use it as a phone book instead of just a repository of the latest photos of somebody's dog.

One provision of the OVI law provides that someone with five prior drunk driving convictions over the past twenty years has to be sentenced to a mandatory one to five years.  It's a third degree felony, and under the general sentencing provisions, the penalty for a third degree felony is nine months to three years.  In State v. Jarrells, the court considers whether the specific penalty prevails over the general one, an issue of first impression in the district.  The panel decides to follow the lead of most other districts, and rules that the one-to-five year provision prevails.  Not the last word on the subject; the 9th District, which came to the opposite conclusion last year, certified the conflict to the Supreme Court.


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