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What's Up in the 8th

Joinder, of defendants and crimes, is the subject of two cases from the 8th District last week.  Brandon Spates flunks the pencil test, but it's more disastrous for him than having to wear one of Frank Costanza's manssieres.   The court does clear up on option on sentencing which involves a gun spec, but nary an encouraging word is heard:  defendants get shut out this week.

Joinder of cases is the key issue in State v. Peterson, a 57-page opus, where Peterson finds himself on trial for three separate robberies, two of which result in deaths.  Among Peterson's ten assignments of error is one claiming that the cases shouldn't have been joined.  The law on this is that offenses can be joined if evidence of one can be admitted in the other case, under EvidR 404(B), or if the evidence of each is "simple and direct."  The court concludes the latter, a finding somewhat at odds with the twenty pages the opinion devotes to the explanation of the facts of the cases.  Nonetheless, you're never going to win this argument if the jury comes back with a not guilty verdict on some of the charges, which is what they did here; that demonstrates they were able to sort the wheat from the chaff.  The not guilty verdicts didn't save Peterson from a 15-to-life sentence run consecutively to the life-without-parole sentence, but oh well. 

The more interesting aspect of Peterson is its treatment of the claim that the prosecutor made improper comments.  This wasn't objected to, so it would normally be reviewed for plain error.  But Peterson's lawyer argues in the same assignment that trial counsel was ineffective for failing to object.  As the opinion notes, that introduces an entirely different standard of review:  while plain error exists only if the outcome of the trial clearly would have been otherwise, and should be found only to correct a manifest injustice, the standard for ineffective assistance is whether there is a reasonable probability of a different result.  So the court applies the lesser standard. 

The outcome is the same, but it's something to keep in mind.  I've seen opinions where the defendant makes both arguments -- plain error and ineffective assistance -- separately, and the court fails to distinguish between the two standards of review:  it will find that, say, admission of hearsay wasn't sufficiently egregious to reach the plain error standard, and then will slough off the ineffective assistance argument by saying it already decided that the admission wasn't error. 

Joinder of defendants can be just as problematic as joinder of cases:  if you're sitting at a table with a bunch of other thuggy-looking dudes, it's a lot easier for the jury to conclude that you were all up to no good.  That's the situation in State v. Holloway, another aggravated murder case, and the law on this is relatively simple, too:  you're entitled to separate trials if the defendants are presenting antagonistic defenses, and the trial would simply result in each pointing the finger at the other, or if there's a Bruton problem:  Defendant A has made a statement implicating Defendant B.  In that case, the prosecution will want to admit the statement made by Defendant A to prove the case against him, but it also inculpates Defendant B, who doesn't get to cross-examine Defendant A about the statement.  That's a violation of his right to confrontation, and requires separate trials.

Antagonistic defenses weren't the problem here, and although there's a Bruton problem, there's a way to solve that:  the prosecution can eliminate any reference to Defendant B in Defendant A's statement.  That's what happens here.  Another problem is that defense counsel never made objection to the joinder, so it's waived.  Remember:  joinder of either cases or defendants must be objected to at the close of the State's case, and of all the evidence.  I think it's a goofy rule, especially with regard to joinder of offenses, for reasons I explained in this post.  In the nine years since I wrote that, the courts have heeded the wisdom of my words, and...  well, no, they haven't.

The pencil test in State v. Spates is used to determine the operability of a firearm:  you put a pencil in the barrel, pull the trigger, and if the pencil comes out, the gun works.  That's what the detective testifies to, and Spates complains that he was never told of the test in advance of trial.  His argument that this violates CrimR 16(K), which requires expert reports to be given to the defense twenty-one days before trial, is rebuffed, the court concluding that this is lay testimony.  Beyond that, Spates contends that the failure to disclose the testing precluded him from preparing cross-examination or obtaining testimony of a ballistics expert that the test is bogus.  That goes nowhere, too.  Despite the new rule on open discovery, the courts have been very reluctant to find discovery violations in the five years since the rule's adoption.  Here, the opinion veers dangerously close to holding that in order to establish a violation, the defendant must show that the failure to disclose was "willful."

Finally, State v. Moore makes a small but significant contribution to sentencing law.  Let's say your client pleads out to a third-degree felony with a three-year firearm spec.  The spec is mandatory time, but can the judge give probation on the underlying crime?  I've argued this with judges, and most seem to believe that if there's a spec, prison time is mandatory for the crime, too.  The judge in Spates' case didn't believe that, and explained in the plea hearing that he could give probation on the underlying offense.  Spates claims that this advice was confusing, but the court says it precisely reflected what the law provides.

You won't be surprised to learn that Moore got a year on the base charge. 


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