What's Up in the 8th
The State claimed that Ronald Inkton was one of three people who raped a woman behind a K-Mart. The two others were caught at the scene, but the third escaped. The two who got caught rolled over on Inkton, but the lack of any forensic evidence, the victim's shaky ID, and the problems with snitch testimony gave Inkton a shot. Except that the day of the crime, Inkton posted a note on his Facebook page to one of his accomplices:
Man, damn, man. Why didn't y'all run when told y'all to run. Now I won't see y'all niggas for a minute. Man, y'all niggas was squad. I'm going to miss y'all niggas. I love y'all niggas. Man no homo. Free Dante. Free Dugga. Some Kinsman savages.
Inkton is left to appeal his rape conviction on the grounds that the post wasn't authenticated. That's a tough hill to climb, given the low standard for authentication, and it becomes a much tougher climb because Inkton's Facebook page prominently displayed his picture. I guess we won't be seeing Inkton for a minute, either.
More Stupid Facebook Tricks. Ronnie Butcher shows up to buy some drugs, but instead gets beaten and robbed. Timothy Garcia is fingered as one of the assailants, but at his trial no fewer than three family members testify to his alibi. In addition to that testimony, the defense attorney elicits negative answers to questions of whether they know Garcia to be involved in gangs or drug dealing, own weapons, or be involved in anything violent. The portrait of Garcia as the embodiment of All That Is Good dissolved on cross-examination, when the prosecutor produced a photograph from Garcia's Facebook page showing him holding a gun and flashing a gang sign. (Helpfully, Garcia posted under the name "Pistol Papa Pete.") His claim that this was improper is easily rejected, and provides a lesson for lawyers: when you open that door, don't be surprised at what comes ambling in.
State v. Durham represents about the sixth time in the past two years that the 8th District has reduced an aggravated murder conviction to simple murder because it found insufficient evidence of prior calculation and design. Here are the relevant facts, distilled from the 35 pages devoted to that in the court's 55-page opus: Durham and the victim, Coleman, were having a feud over some property. Coleman called Durham to let him know that he was coming to the property, and intended to tell Durham he had to leave it. When Coleman arrived, he and Durham walked behind the building, and Durham pulled out a gun he was carrying and shot Coleman. Enjoy it while it lasts; the Supreme Court has taken in about three cases on this, and I'm not too sanguine about the ultimate outcome.
In State v. Jackson, Jackson is convicted of aggravated robbery, but the jury hangs on two kidnapping counts. Since those would probably merge anyway, the State foregoes a retrial on them and dismisses those counts. Jackson takes it up on appeal, only to have the appeal dismissed. Why? Because the State "never asked that the charges be dismissed with prejudice," and since the dismissal without prejudice, the charges can be brought again, and there's no final appealable order.
I think this is wrong, for a couple of reasons. First, it misconstrues the concept of a final judgment. As the 5th District pointed out in in State v. Manns, a nolle by the prosecution terminates the proceedings. True, the State could subsequently pursue the charges, but that would require a new indictment and a new case. This one is over, and thus provides a final appealable order.
To be sure, the rule in civil cases is that a dismissal without prejudice can't be appealed, but this brings us to the second problem with Jackson. If a plaintiff has his civil case dismissed without prejudice, he has a simple remedy: refile the case. But what does Jackson do now? What's the mechanism by which he forces the State back into court to dismiss the charges with prejudice, so he can appeal?
In the meantime, does this mean that when the prosecution dismisses charges as part of a plea bargain, without specifying that it's with prejudice, the defendant is foreclosed from appealing? You could certainly make the argument that the charges can't be brought again, because doing so would be barred by the plea bargain, but at least under Jackson, that doesn't necessarily affect the finality of the order.
The 8th District used to be very good at 404(B) cases, culminating in its en banc decision four years ago in State v. Williams, imposing serious hurdles on the prosecution's use of such evidence. Then Williams was reversed by the Supreme Court (discussed here), and so we come to last week's decision in State v. Pridgett.
Pridgett was accused of rape of his adopted daughter and his grand-daughter. One of the rapes of his daughter occurred when she was pregnant - with the granddaughter, no less - and she testified that on that particular occasion Pridgett told her that it felt "good and different" because she was pregnant. The State then presented the testimony of Pridgett's niece, who testified that she lived with family for short period of time, during which Pridgett made statements about her having large breasts and buttocks because she was pregnant.
The court finds this testimony admissible because it shows "that Pridgett had the opportunity and intent to be inappropriate with underaged girls." The relevance of the evidence is sketchy; whether one is "inappropriate with underaged girls" hardly seems probative of whether one would rape them. This arguably is little more than nothing more than propensity evidence, which is specifically barred. (And the court never engages in the third step of the Williams analysis, determining whether the probative value outweighs the prejudicial effect.) But this just emphasizes the fact that, after Williams, keeping out 404(B) evidence in child sex cases is a real uphill climb.