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What's Up in the 8th

Either trial judges here are getting better or appellate lawyers are getting worse:  at least half a dozen appeals raise nothing other than manifest weight or sufficiency of the evidence.  Typical is one I handled, State v. BlandBland was charged with breaking into a house and robbing a man at gunpoint.  He got a major break from the jury when it convicted him of only burglary, abduction and theft, acquitting him of aggravated burglary, kidnapping, and the firearms specs. 

While making their getaway, the robbers, one of whom was wearing a ski mask with a single eyehole, scraped their car against the side of the house.  Three days later a cop chased a car which turned out to have damage to the one side - the cops even matched the broken side-view mirror with the one left at the scene of the robbery - and found a gun and a ski mask with one eyehole underneath the front seat.  The cop testified that Bland was the guy who ran from the scene, and it's his girlfriend's car.  (Which she reports stolen ten minutes after the stop.)  Oh, and did I tell you the part where Bland's fingerprints were found on the table where the stolen TV had been sitting?  My major accomplishment was keeping a straight face during oral argument.

The court does tackle some major issues.  In State v. White, several men break into a house to rob the owner of drugs, and wind up killing him:  is that sufficient to establish the prior calculation and design for aggravated murder?  Turns out there's case law distinguishing between the situation where there's a pre-conceived plan to kill the victim - for example, where he's killed execution-style - as opposed to the simple "robbery gone wrong."  "Simply having a firearm during the commission of a robbery and being prepared to use it does not evidence prior calculation and design."  In a bench trial, the judge found that the robbers had planned to kill owner if he resisted, but that's not enough; the fact that they shot him when he didn't resist was.

This is largely academic; White was also convicted of aggravated murder under the (B) section - committing a purposeful killing while committing aggravated burglary.  White also appeals his sentence, but we learn that he can't:  under RC 2953.08(D)(3), a sentence for aggravated murder - 20, 25, or 30 to life, or life without parole - is not subject to appellate review.

State v. Hill contains another lengthy discourse, this time on whether the grand jury process was tainted to the degree that it warranted the dismissal of the indictment.  Hill was charged with a 20-year-old rape, but when the grand jury indicted him, they only had the preliminary DNA results; the final results weren't determined until ten days later, after the statute of limitations had expired.  We learn that a court can exercise supervisory powers over a grand jury only to prevent "fundamental fairness," like racial discrimination in selection of jurors, and... uh... well, that's pretty much it.  Here, Hill's simply arguing that the grand jury didn't have enough evidence to indict, and that's not subject to judicial review. 

The defendant in State v. Lawshea also raises a constitutional argument, that she was denied due process and a fair trial because of shoddy investigation by the police in failing to pursue leads regarding another possible suspect.  Unsurprisingly, there's plenty of case law holding that "sloppy police work does not violate a defendant's due process rights."  Unsurprisingly, and unfortunately for defendants:  if this were a basis for reversal, half the cases in Cleveland would get thrown out. 

The result in State v. Gaines is surprising.  At the plea hearing, the judge told Gaines at plea that he had the constitutional right "to remain silent and not to testify and no one could comment on the fact that [he] did not testify at trial," and Gaines asks "what that mean, I don't have to testify at trial?"  The judge then then told him that State would have burden of proving his guilt beyond a reasonable doubt, and he wouldn't have any burden at all. 

The panel holds that this exchange indicates Gaines was unclear as to the meaning of the right against self-incrimination, and since the judge responded with an explanation of burden of proof, the record doesn't show that Gaines made a "knowing, intelligent, and voluntary plea."  In fact, Gaines' question did indicate he understood the right:  "I don't have to testify at trial."  I wouldn't place too much precedential value on Gaines. 

Finally, while the 8th District has said in several opinions that the standard for determining whether a judge made the findings necessary to impose consecutive sentences has become more "relaxed" since the Supreme Court's decision in State v. Bonnell, there are limits, as demonstrated by State v. Bizon, another appeal I handled, with better results.  In imposing maximum consecutive sentences on Bizon for sexual battery of four of his grandchildren, the judge said, "The hardest part of raising children is keeping them alive and well and safe. And who better to trust than your parents and then your grandparents. And Mr. Bizon, you violated that trust."  As I pointed out in my brief, the statement would have been equally fitting if the judge was imposing a sentence for misdemeanor child endangerment because Bizon's left the kids in the car while he ran into Walmart.

Meanwhile, I just got done writing another brief where another judge - also smart and experienced, as was the one in Bizon's case - said nothing remotely close to the required findings in imposing consecutive sentences.  And one of the judges on my panel in Bizon made another interesting point:  where's the prosecutor in all this?  Don't they know what the requirements are, either?


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