Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


What's Up in the 8th

I always like it when people ask me if I've got any big plans for the weekend.  At my age, staying awake for the entirety of Sunday Night Football is my personal Mt. Everest.  Not so for Wesley Reese; at the ripe old age of 76, not only does he have a 48-year-old girlfriend, Janet Schultz, but he has the energy to go out to dinner with her, join her in finishing off a pitcher of margaritas, and then hit the bars to consume several more beers.

As you might gather, this being a criminal law blog, the evening doesn't end well, with Schultz attacking Reese with a stool; the next thing Reese remembers, he's lying on the floor looking down at his foot, where "toes were pointing back to where his heel used to be." 

Ever the galant, Reese tells the cops that he fell, but in the hospital he tells the nurse and the doctor what really happened, and so State v. Schultz provides a primer on EvidR 803(4), the hearsay exception for statements made for purposes of medical treatment and diagnosis. 

Admissibility under that exception is governed by a two-part test:  (1) Is the declarant's motive consistent with that of a patient seeking treatment; and (2) Is it reasonable for the physician to rely on the information in diagnosis or treatment?  The best argument that Schultz can muster on this score is that information as to her identity as the assailant shouldn't have come in, and the court completely ducks the issue, responding to it with the non sequitur that "the doctor testified that he ordered the CT scans based on Reese's complaints of pain to his head, face, and lower extremities, and loss of mobility."  No matter, because Schultz runs into the problem this argument almost invariably encounters:  since Reese testified to Schultz's identity, it's harmless error.

The court's treatment of another evidentiary issue in State v. Rodriguez is more troubling.  The defense used a witness' statement to impeach her, and in redirect the State had the victim read the entire statement.  The panel rejects Rodriguez's argument that this was wrong, noting that, "Generally, courts have found that once defense counsel reads a statement on direct it opens the door for the prosecutor to read the entire statement in rebuttal to rehabilitate the witness."

Well, if that's what courts have generally found, they're wrong.  The question is governed by EvidR 106:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it.

The opinion never mentions the rule, and even the Supreme Court opinion it cites limits the use of the remainder of the document to "where such other statements are consistent with the statements made on direct examination or are in explanation of such apparent inconsistency and do not serve to inject new issues into the case." 

That's not to say Rodriguez produces a wrong result; the court notes that while having Vega read the full statement "did not rehabilitate her testimony on direct" - which, of course, is the purpose of having the statement read - it didn't add any new evidence, and was cumulative and therefore harmless.  But the opinion is far broader than it should have been, and now you're going to wind up with prosecutors waving a copy of Rodriguez and telling the judge, "It says here I can have her read the whole statement."  So respond by giving the judge a copy of this blog post; I'm sure that'll do the trick.

Finally, let's play You Be the Judge.  You're taking a plea, and you begin the colloquy by asking the defendant if he's on any medication.  He responds by telling you that he's got schizophrenia, but he's been off his meds for a couple of months.  You ask him about what kind of symptoms he has, and he responds, "Just loud outbursts, but I be okay freely.  It's under pressure." 

You (A) decide the answer is so loopy you want the head doctors to take a look at the guy and determined if he's competent, or (B) go ahead and take the plea.

In State v. Elliott, the panel gives a green light to what's behind Door B.  The opinion notes that the judge told Elliott to interrupt him if Elliott didn't understand something, that Elliott "specifically indicated he was satisfied with his attorney, and "specifically" said that pleading guilty was his own choice.  The record "does not reflect anything out of the ordinary in Elliott's behavior and demeanor in the courtroom," and his attorney never raised the issue of competency.

In light of the latter fact, and that the judge's decision is reviewed for abuse of discretion, it's hard to quibble with the result.  As the panel notes, the Ohio Supreme Court has found that "a defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel."  The main problem is the exceedingly low bar for competency; as one commentator has said, the standard for competency is basically the ability to distinguish the judge from a cabbage.

But I'm sorry, if I ask a guy how he's doing, and he responds by saying, "Just loud outbursts, but I be okay freely.  It's under pressure," I'm figuring he needs a stay in the Rubber Ramada.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses