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Case Update

Federal habeas relief is precluded so long as "fairminded jurists could disagree on the correctness of the state court's decision," and when an appellate court, in a 2-1 vote, reverses the trial court's ruling denying a habeas petition, that's a pretty good indication that fairminded jurists could indeed disagree, because two of them (presumably fairminded) did.  That's the Supreme Court's holding in Woods v. Etherton, summarily reversing the grant of relief by the 6th Circuit. 

That wasn't the only SCOTUS decision of note last week.  In what might be a portent of the End of Days, the Court ruled unanimously in favor of a sex offender in Nichols v. US, with that consummate friend of criminal defendants, Samuel Alito, penning the opinion.  Wilson spent eight years in prison for taking a minor across state lines to have sex, and registered as a sex offender in Kansas when he got out in 2011.  A year later, he hopped a plane and moved to Manila, where he was eventually apprehended.  His argument was simple:  the law requires a sex offender to register where he resides, not where he leaves, and since the Philippines aren't covered by the sex offender statutes, he wasn't required to tell them he was moving there.

The Court agreed, and while that's good news for Nichols, there won't be many following his path, at least not without legal consequences.  Just last year President Obama signed the Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Act, which does as you might guess.  And no, they apparently couldn't come up with a catchy acronym.

The Court also granted certiorari in Pena-Rodriguez v. Colorado.  Pena-Rodriguez had been convicted of sexual harassment of two teen-aged girls, but two jurors later told his lawyers that one of the other jurors had made racist comments about Mexicans during the deliberations.  As lawyers know, EvidR 606(B) prohibits testimony by a juror about the deliberations; Pena-Rodriguez contends that the rule is inconsistent with his 6th Amendment right to a fair jury trial.  The case will be argued next year.

The last decision out of Columbus in a criminal case was State v. Klembus.  As I explained when I discussed it a couple weeks ago, the court had unanimously concluded there was no problem with having a defendant serve an additional one to five years in prison for a sixth DUI in twenty years, solely because the prosecutor adds a specification that this is the defendant's sixth DUI in twenty years.  My buddy John Martin handled the case, and undeterred by a 7-0 vote against him, filed a motion for reconsideration.  Now word yet on the outcome, but I'm guessing it's unlikely to spur four justices to conclude, "Jeez, guys, we really screwed the pooch on this one, huh?"

A couple court of appeals decisions worth mentioning...

The 5th District tackles protective sweeps in State v. Levengood.  Police responded to Levengood's apartment and found him unresponsive on the floor, at which point one of the officers decided to do a protective sweep of the residence "for our safety and for the safety of others."  The sweep included the bedroom, where the officer observed heroin as it's always found, in "plain view." 

The trial court tossed the search, and the panel affirms.  The "protective sweep" is one of the main avenues by which the police undertake warrantless searches of a person's dwelling, but Levengood provides some major restrictions on the tactic.  The main takeaway is that police have to have a reasonable suspicion that there are actually other people on the premises; they can't justify a sweep by claiming that they needed to determine whether other people were there.  As one court put it, "not knowing whether anyone else was inside the residence is an insufficient pretext for a protective sweep to learn whether anyone is in fact inside."

I've often maintained that it's impossible for a child in Ohio to say anything that's not an excited utterance, but the 3d District does some nice work on that subject in State v. Hawkey.  The short version of the facts - and an exceedingly short version, because the opinion's version runs 58 paragraphs - is that a 10-year-old boy, Corey, shot and killed his father.  It was ruled an accident, but eight years later Corey started telling everybody that his mother put him up to it.  Two people were allowed to testify as to the statements Corey made to them. 

Corey claimed that the reason for his late disclosure was that his mother had continued to abuse him, and it was only ten months earlier that he had gotten out of the house.  The panel acknowledged that while others testified that he was "upset" when he made the statements to them, "merely being 'upset' clearly does not meet the standard for admissibility under Evid.R. 803(2) because it does not show that the statements were not the result of reflective thought."

Even better was the court's handling of the issue of harmless error.  Corey obviously testified, and there's a tendency of appellate courts to hold that while out-of-court statements by the witness shouldn't have been admitted, it's harmless error because the witness himself testified to the same thing. 

But the court rightly looks at all the evidence, not just Corey's prior statements and testimony, to determine whether the error is harmless, and has some good language on the subject:

Error is harmless if there is no reasonable probability that the evidence may have contributed to the accused's conviction.  In the final analysis, the evidence in favor of conviction, absent the hearsay, must be so overwhelming that the admission of those statements was harmless beyond a reasonable doubt.

Here, the court finds that Corey's testimony was the only real evidence against Hawkey, and was contradicted by the physical and other evidence in numerous aspects. 

Given that the dispositive issue in this case was credibility, the effect of allowing the hearsay testimony of Beck was to bolster Corey's credibility. Thus, it cannot be said to have had no contribution to the convictions. The error was therefore prejudicial and is the basis for the granting of a new trial.

A good opinion to have handy if you've got an issue of excited utterance.

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