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Case Update - Appellate Edition

SCOTUS finished up its term last week - you may have heard - and I spent the last couple weeks talking about several Ohio Supreme Court decisions.  (Speaking of the former, I'll do my annual recap of US Supreme Court decisions later this week.)  The Columbus Seven didn't come out with anything new last week, and I haven't done my customary review of appellate court decisions in a few weeks, so let's get to that.

We'll start with a trifecta from the 10th District.

Your client and a co-defendant are charged with possessing cocaine.  Can you introduce the fact that the co-defendant pled guilty to the charge?  That's the issue presented in State v. Hurse, and the court's hampered by the fact that all of the case law discusses whether it was error for the trial court to admit the co-defendant's conviction, rather than to exclude it, and in most cases it was the prosecutor seeking to admit it.  The court affirms the trial court's decision to exclude it, because there's no prejudice:  just because the co-defendant pled guilty didn't preclude the jury from deciding that Hurse was an accomplice.  Simply put, more than one person can possess cocaine.

Does a passenger have standing to challenge the search of a car?  Back in 1978, the Supreme Court held that he didn't in Rakas v. Illinois.  But there's a distinction, the panel notes in State v. Tabler:  if the stop is illegal, the passengers have standing to suppress evidence in the car as a fruit of that illegality.  In Tabler, the police officer had encountered Tabler and another person in a legally parked car, and took their licenses to run an ID check.  The trial court found, and the 10th affirms, that that constituted a seizure of the two, and an impermissible one at that, since there was no reasonable suspicion that they were engaged in any criminal activity.  The opinion also has some good stuff on consent, finding that the driver's "agreement" to allow a search was simply the result of police bullying.

Kidnapping's a first degree felony, but gets dropped down a degree if the defendant leaves the victim in a safe place unharmed.  That's not an element of the offense, the court explains in State v. Oliveira; it's in the nature of an affirmative defense, which the defendant must prove.  The court finds that threatening the victim with a gun and slapping her in the back of the head with his hand didn't show that she was "harmed," since there were no visible injuries; at least a jury issue was raised by the evidence, and warranted an instruction on the lesser degree.  One more point:  while the defendant did ask for an instruction on the second degree felony, the court suggests that failure to give one where the evidence warrants it is plain error. 

State v. Norton presents an unusual scenario.  The victim of a robbery told the police that the attempt was "bush league," and that he would have done it differently.  The defense sought to introduce this as proof of the victim's prior experience in committing robberies, but the trial court nixed that idea.  The 8th District affirms, finding that any probative value it might have had was outweighed by its prejudicial effect.

Making an ineffective assistance of counsel claim for the attorney's failure to file a motion to suppress depends upon the viability of the motion; it's not deficient performance to file a motion that's a clear loser.  That's what the 4th District concludes in State v. Robinson, where the police had conducted a warrantless search of defendant's apartment because they believed she was operating a meth lab.  The court points to RC 2933.33, which specifically provides that probable cause to believe a premises contains a meth lab justifies a search without a warrant.

How has nobody attacked the constitutionality of this?  I understand the dangers of meth labs exploding, but the whole purpose of the 4th Amendment is to have the magistrate, not the police officer, determine probable cause.  Especially when it comes to the home, just about the last sanctuary against warrantless police invasion.

This is where I stopped reading.  The third paragraph in the 5th District's decision in State v. Welker:

At the beginning of the trial, appellant stipulated to the facts necessary to prove the charge, but sought to present an affirmative defense. Appellant stipulated that the ordinance states that no ducks can be kept in the village, and that he is keeping ducks in the village. However, appellant presented evidence on the affirmative defense of necessity.

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