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What's Up in the 8th

Two weeks of 8th District decisions, and a day late at that.  Among the fourteen cases we find some support for the observation that youth is wasted on the young, the court wrestles with the question of what constitutes an "emergency" for confrontation clause purposes, and another sentencing case.

In Cleveland v. Merritt, the police responded to a call from Merritt's home, and found Merritt's girlfriend with bruises on her fact, a black eye, and a split lip.  Merritt gallantly offered that the victim caused injuries to herself, most likely by repeatedly hitting him in the fist with her face.  While one officer took Merritt outside, the other talked to the victim, who was hysterical and related that Merritt had ended an argument between the two by smashing her head against the wall.

The victim never appeared for trial, so the question was whether the officer's testimony about what she told him was testimonial, or was merely in response to an ongoing emergency.  One of the problems for Merritt is that he relies primarily on the Ohio Supreme Court's decision in State v. Clark, which was unanimously overruled by the US Supreme Court.

There's been an unfortunate tendency among courts to find that an emergency is "ongoing" simply because the offender hasn't been apprehended yet, but Merritt avoids that, and actually does an excellent job of wading through the thicket of case law here.  The bottom line is that if the police respond to a domestic call and find a muddled situation, responses to their questions as they try to sort things out are rarely going to be regarded as testimonial.

In State v. Studgions, the defendant appeals his maximum sentence on aggravated robbery, arguing that the record "clearly and convincingly" fails to support the sentences.  Oh, but it does, at least if it takes a whole paragraph of the opinion to recite your record, you stab your girlfriend in the chest while drunk, and you top it off by doing this while you're on post-release control. 

That the court went so far as to consider the record at all is a win of sorts.  I've mentioned that there seems to be a growing division among the judges as to whether State v. Marcum (discussed here) allows an appellate court to do that, with some judges agreeing that I'm right that it does, and others believing that I'm wrong.  (Okay, admittedly, none of the opinions refer to me, but believing that they implicitly do is in accord with my Bensing-centric theory of the universe.)  It seems at least plausible that this might prompt the judges to convene en banc, as they did in State v. Nia and State v. Jones, settling the state of the law -- in the former, the requirements for consecutive sentencing, in the latter the actual prejudice necessary for pre-indictment delay -- only to ignore the opinions within a few months, as if they'd been phoned in by an anonymous caller.

In State v. Sampson, the defendant's tender age of 16 does not preclude his participation in a bank robbery.  That's a category 2 offense, meaning it's a mandatory bindover to adult court if probable cause is found.  Sampson claims he wasn't the one with the gun, which would be good, because there's case law that bindover isn't proper if it was the accomplice, not the juvenile, who brandished the gun.  But there's a surveillance video showing that he did have one, so that's that. 

Sampson also contests the constitutionality of the mandatory bindover, but the court relies on precedent to reject that.  There's a case in the Supreme Court on that now, State v. Alim, which was argued the same day I argued Jones, the case on pre-indictment delay.  The woman from the OPD who handled Alim did the best job of anybody that day, and frankly, I didn't see four votes on the court for upholding the statute.  It's only oral argument, so we'll see, but it's definitely one to look out for. 

The defendant in State v. Terrell is also a juvenile, and much more precocious in the ways of crime than Sampson:  he's bound over on two cases involving armed robbery, one of which resulted in the clerk being shot to death. His argument is sentencing, not bindover:  he contends that the murder statute and its 15-to-life sentence, as applied to juveniles, is unconstitutional because it doesn't allow the judge any discretion to consider the fact that he's a juvenile, relying on the recent SCOTUS decisions in Miller v. Alabama and Montgomery v. Louisiana, which were adopted by the Ohio Supreme Court in State v. Long.  But all those cases involved sentences of life without parole, and this doesn't, so that's that, too.

Trayvon Abrams isn't a juvenile.  He's 21.  And before his current case, he had no criminal history, as an adult or juvenile.  But when he went wrong, he went big:  a 105-count indictment for a crime spree of armed robberies at various establishments, involving no fewer than 60 separate victims.  He pled out to a RICO count and 18 counts of aggravated robbery, and the question presented in State v. Abrams is whether he should spend the next 28 years in prison.

As the legions of my regular can no doubt attest, I'm not a fan of harsh sentences.  But, at least from the opinion and the quotes from the sentencing judge, there was a casual ferocity to these crimes which leaves me undisturbed that Abrams is going to be going away for a good while.  Twenty-eight years?  Not so sure; with 34 judges up here, I'd guess he'd wind up with an average sentence of between 15 and 20, and maybe a few years less.  But that's a case you win in the arraignment room.  If the judge made the findings -- and she did, and explained the basis of them -- it's not one you win in the court of appeals. 


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